Asymmetrical Information

You've nailed it Jane. It tells one a lot, I think, that those who favor gay marriage are horrified and disgusted by the idea of letting the people vote. They would much rather have the issue decided by judicial fiat than by the will of the majority.

Orson Scott Card, by the way, has a lengthy essay over at Ornery American on this issue. He makes a lot of good points.

I disagree Jane. Gay marriage is a relatively simple issue that people generally have some understanding about. Almost everyone has an opinion. Unfortunately for those of us who support gay marriage, most Americans are against it. It is an excellent issue for the Bush campaign to exploit. His position appeals to his base and is also in line public opinion. On the other hand, John Kerry is very weak on the issue. With the exception of the ammendment, his position is very similar to Bush's. In favor of civil unions but against marriage. He does not take the strong and in my opinion correct position that would appeal to his liberal base. Bush can push the issue and watch Kerry squirm. Not matter what position he takes, Kerry can only lose. Support marriage and lose moderate votes. Not support and lose liberal votes. Sit on the fence and look morally weak.

I think the ammendment is idiocy and I doubt it will get any farther then the flag burning ammendment but it is useful as a tool to keep the debate in the news. That's why Bush will continue to talk about it.

Jim English

I think most people have an opinion on it, Jim; I just don't think it will affect how they vote. 95% of the people who are strongly in favour of it are already planning to vote against Bush; 95% who are strongly against are already planning to vote for him. The messy middle, where the election will be decided, has an opinion but doesn't care enough to let it change their vote.

You are probably right, but turnout in Florida (among other states) may make the difference. As supporters of marriage see morally strong leaders like Gavin Newsome they may decide that their interests will not be served by Kerry. They may stay home. In the short term, I expect the Bush campaign to continue to press the matter. We'll see how it plays in Peoria.

Jim English

And people who were cheering the various court decisions, and are now screaming about this, need a consistency check. Yes, we all support gay marriage -- but a majority of your fellow citizens don't. You thought you'd found a way to end run the tedious process of cultural change by getting judges or officials who lean your way to read rights you're in favor of into the constitution. You can hardly scream "foul" when they try to get legislators who don't lean your way to write those rights right back out again.

In fact, maybe there's one good thing to come out of all this: maybe this is a good opportunity for the fans of liberal court activism to think about why their opponents might be horrified by the prospect of having contentious issues decided by having the other side's position written--or read--into the constitution.

And people who were cheering the various court decisions, and are now screaming about this, need a consistency check. Yes, we all support gay marriage -- but a majority of your fellow citizens don't. You thought you'd found a way to end run the tedious process of cultural change by getting judges or officials who lean your way to read rights you're in favor of into the constitution. You can hardly scream "foul" when they try to get legislators who don't lean your way to write those rights right back out again.

In fact, maybe there's one good thing to come out of all this: maybe this is a good opportunity for the fans of liberal court activism to think about why their opponents might be horrified by the prospect of having contentious issues decided by having the other side's position written--or read--into the constitution.

So what exactly are gays and lesbians supposed to do? Just sit around wait and hope that the laws would change? Desegregation was ultimately achieved with a legal victory. Personally, I think that regular people will see that the sky didn't fall from the sky from gays getting married and will get on board.

I remember seeing an article where it said that the images of the San Francisco marriages helped mainstream America realize that gays are very normal looking people, with normal lives. Plus, in California in 2000 Prop 22 passed with 61% in favour. Today, pollings show support for it at 50%...I have to think that the marriages in SF is what changed some of those minds as no other major event has occured.

And please, enough with this liberal courts business. It's bad enough that the media and academia gets tagged with being liberal. I thought it was the liberals who were conspiracy theorists.

oopss..my last post ended up screwy. My actual comments that with the paragraph:

"So what exactly are gays and lesbians supposed to do?"

everything before that is an excerpt of Jane's post. Don't ask.

Manish, this just doesn't compare to civil rights, in several dimensions.

The number of people who want to get married, and can't, is very small

The harm, compared to the harm of Jim Crow, is trivial

And marriage has, for at least the 5,000 years we know about, always and everywhere been between men and women. The reasons for that may no longer apply, as our circumstances changed, but a cultural heritage common to every society on earth is not the same thing as a unique racial system. Moreover, gays are not denied the vote, whereas blacks were unable to vote to change the system that oppressed them. And much of Jim Crow had been codified by court decision, such as Plessy, that needed to be reversed.

Most importantly, it is changing. We'll have gay marriage in twenty years. But forcing it, like Roe, will only make the opposition more virulent, and quite possibly delay the advent of true equality.

As I mentioned on the previous thread on abortion, the debate over gay/lesbian marriage is starting to shape like the abortion debate. Both sides may want to think about trying to push either court decisions or constiutional amendments, as there is no sustained support out there for either when it comes to gay/lesbian marriage (or abortion, for that matter).

Besides, this debate hasn't gotten quite heated up just yet. Just wait until SCOTUS rules that the 9th Circus was right on the Newdow case involving the Pledge of Allegiance (and they will; you heard it from me first!). If I were Andrew Sullivan and other gay/lesbian marriage proponents, I'd try to encourage SCOTUS to throw the Christian Right a bone and keep the Pledge as is. You don't want this group up in arms against you, and with so little time between late June and Nov 2.

The number of people who want to get married, and can't, is very small

Jane, the same can be said of anti-miscegenation laws.

And marriage has, for at least the 5,000 years we know about, always and everywhere been between men and women. The reasons for that may no longer apply, as our circumstances changed, but a cultural heritage common to every society on earth is not the same thing as a unique racial system

Hasn't this one been beaten to death already? We've changed human tradition many times. This includes things like democracy, women's suffrage, etc. etc.

Most importantly, it is changing. We'll have gay marriage in twenty years.

How so? As I see it, its only been court decisions that have gotten anything. This is true of the Vermont civil unions as well as the Massachusetts decision. Some states have enacted relatively weak domestic partner legislation. Personally, I've always felt it had much to do with the ickiness factor. As soon as mainstream America got past the ickiness, all would be well with the world.

There seems to be fairly broad support for civil unions all of a sudden, which I think can only be traced to the court decisions and other activism. I doubt that there would have been that level of support without the Vermont and Mass. decisions.

In terms of the comparisons to Roe, you may be right. It'll turn out like Roe or it will turn out like Brown v. Board of Ed. My money is on Brown v. Board of Ed. because people will see that gays being allowed to marry isn't the end of the world much as desegregation didn't make the sky fall from the sky. On the other hand, many see abortion as killing and no amount of time or court decisions is going to change that.

Jane Galt wrote:

I think most people have an opinion on it, Jim; I just don't think it will affect how they vote. 95% of the people who are strongly in favour of it are already planning to vote against Bush; 95% who are strongly against are already planning to vote for him.

Some would disagree with that

President Bush left several million evangelical voters "on the table" four years ago and again is having trouble energizing Christian conservatives, prominent leaders on the religious right say.

"If there is a rerun of 2000, when an estimated 6 million fewer evangelical Christians voted than in the pivotal year of 1994, then the Bush ticket will be in trouble, especially if there is no [Ralph] Nader alternative to draw Democratic votes away from the Democratic candidate," added Mr. Knight, whose organization is an affiliate of Concerned Women for America (CWA).

Their list of grievances is long, but right now social conservatives are mad over what many consider the president's failure to strongly condemn illegal homosexual "marriages" being performed in San Francisco under the authority of Mayor Gavin Newsom.

I do not agree with placing this any where near the top of my list of concerns - even though I agree with the FMA out of concern for the judicial activism SCOMA and the lawlessness in San Francisco, my top policy concerns are identical to Jane’s, - I think they make a fair point. If there were six million less evangelicals who voted for Bush than voted in 1994, then this issue probably would be a net plus for Bush if it gets them motivated to vote and work for the President and other Republican candidates.

The messy middle, where the election will be decided, has an opinion but doesn't care enough to let it change their vote.

I largely agree (although polls do seem to indicate that the public overwhelmingly agrees with the traditional definition of marriage even if support for a constitutional amendment may or may not be there depending on which polls you cite and how you interpret the decisions of 38 States to effectively ban “gay marriage” post-DOMA as a barometer of public support). However I think that this is an issue with low-risk to Bush politically with a potential benefit of energizing his base and getting back some of the missing six million evangelicals.

This whole mess is a perfect illustration of why we should just scrap the concept of civil marriage altogether (for gays AND heterosexuals).

Why does the state need to license/structure marriages at all? Why tax two adults differently when they live together and/or have children together?

Just take the state out of the equation. Now any consenting adults can form any partnerships they like. They can call them marriages, or LLCs, or whatever. They can write contracts specifying the obligations of each party; they can have a ceremony in a church if they choose. They get no special legal protections or status. The state doesn't even get a notice in the mail.

Would this allow polygamy? Yep. What about incest? If all parties are consenting adults - yep. But to those issues, I say: is a law the only thing restraining you from marrying your sibling? If not, why are you so worried about whether or not someone else does?

What about children? Children have two biological parents - presumptively give them equal custody (with allowances for circumstances) and then treat each parent as a custodial single parent for legal purposes. There are already more than enough laws on the books specifying a parent's obligation towards their children.

"So what exactly are gays and lesbians supposed to do? Just sit around wait and hope that the laws would change?"

Sigh. No. Change the laws through the legislative process. That is what it is there for. It takes a bit longer than finding a sympathetic judge, it is a bit harder than finding a sympathetic judge, but it is a lot easier on the political system. Liberals really need to understand that if you make everything a Constitutional issue, you risk losing things on a Constitutional Level . I think there is a pretty obvious long-term trend toward gay marriage. If we had continued on that trend on a legislative basis, I strongly suspect we could have gay marriages in most large states in 5-8 years and gay marriages practically everywhere in 15-20 years. But by overplaying the judicial hand we risk losing it all at the amendment level. That is just stupid politics and a stupid risk.

Bombadil wrote:

This whole mess is a perfect illustration of why we should just scrap the concept of civil marriage altogether (for gays AND heterosexuals).

Except that when another country actually tried to do this, it was an unmitigated disaster:

The question whether marriage as an institution should be abolished is now being debated all over Russia with a violence and depth of passion unknown since the turbulent early days of the Revolution. Last October a bill eliminating distinctions between registered and unregistered marriages and giving the unmarried consort the status and property rights of the legal wife was introduced in the Tzik, or Central Executive Committee. So much unforeseen opposition to the proposed law developed that the Tzik decided to postpone its final adoption until the next session, meanwhile initiating a broad popular discussion of the project. At the same time a law was passed which made divorce a matter of a few minutes, to be obtained at the request of either partner in a marriage. Chaos was the result. Men took to changing wives with the same zest which they displayed in the consumption of the recently restored forty-per-cent vodka.

'Some men have twenty wives, living a week with one, a month with another,' asserted an indignant woman delegate during the sessions of the Tzik. 'They have children with all of them, and these children are thrown on the street for lack of support! (There are three hundred thousand bezprizorni or shelterless children in Russia to-day, who are literally turned out on the streets. They are one of the greatest social dangers of the present time, because they are developing into professional criminals. More than half of them are drug addicts and sex perverts. It is claimed by many Communists that the break-up of the family is responsible for a large percentage of these children.)

The peasant villages have perhaps suffered most from this revolution in sex relations. An epidemic of marriages and divorces broke out in the country districts. Peasants with a respectable married life of forty years and more behind them suddenly decided to leave their wives and remarry. Peasant boys looked upon marriage as an exciting game and changed wives with the change of seasons. It was not an unusual occurrence for a boy of twenty to have had three or four wives, or for a girl of the same age to have had three or four abortions. As the peasants of Borisovo-Pokrovskoie bitterly complained: 'Abortions cover our villages with shame. Formerly we did not even hear of them.' But the women, in self-defense, replied: 'It's easy for you to talk. But if you just tried to bear children yourselves you would sing a different song.'

Read the whole article here:
http://www.theatlantic.com/issues/26jul/russianwoman.htm

Thorley Winston

I agree with the FMA out of concern for the judicial activism SCOMA and the lawlessness in San Francisco

The FMA as Rep. Musgrave has written it is not about judicial activism. It would deny the states the ability to recognize same-sex marriages if thats what they wanted to do. And the proper response to the SJC of Massachusetts would be for Massachusetts to alter their own Constitution (as they are in the process of doing) not for the country to alter its Constitution.

And living in San Francisco, I can tell you that there is no lawlessness here. The city hasn't descended into chaos..it really hasn't. Civil disobedience will always have a place in American society (pls. see Boston Tea Party, Rosa Parks and Martin Luther King, Jr.)

Bombadil,

There are several reasons to keep the state in the marriage business.

The first is the one you are least likely to like: family law has huge effects far beyond the family. Crime, poverty, and economic productivity are closely related to how children are raised, and how children are raised is substantially affected by both the law, and the social norms which people take from the law. the hyper-rationalist notion of simply letting people do what they want will (has!) affect the family, and thereby society, in a big and not necessarily good way. Permitting incest is a wonderful way to destroy families--the "ick factor" will decline if it is legalized, and its practice will devastate people's ability to function. Certainly decriminalizing sodomy has helped to reduce the "ick factor" for homosexuality.

Furthermore, the law treats married couples differently in many ways, and it isn't so simple to disentangle them. For instance, should my wife get Social Security benefits when I die? Probably so--but if the state can't sanction marriage, then how will they decide how to allocate those benefits? How will immigration law handle those non-married couples who want to get in. (These are actually arguments for gay marriage, as well, and are part of why I support gay marriage).

As to the claim that consenting adults can form contractual relationships which approximate marriage, that's certainly true, and one of the reasons that I think the arguments for gay marriage are weaker than they should be. But such arrangements require substantial foresight, effort, and expense. Keep in mind that this is a nation which frequently has a negative savings rate--are most couples going to manage to have valid wills, durable powers of attorney, etc? Isn't it much better to simply bundle all of that into a package and call it "marriage"?

There's just too much law that depends on the concept of marriage to wipe it away so blithly.

Manish wrote:

The FMA as Rep. Musgrave has written it is not about judicial activism.

It was in response to judicial activism. But for the nonsense of the SCOMA, I doubt that the issue would have been raised as it had and but for the lawlessness in San Francisco, it might not have merited the support of the POTUS.

It would deny the states the ability to recognize same-sex marriages if thats what they wanted to do.

If three-fourths of them ratify it (very likely since 38 of them changed their own laws and constitutions post-DOMA), then yes that would happen.

And the proper response to the SJC of Massachusetts would be for Massachusetts to alter their own Constitution (as they are in the process of doing) not for the country to alter its Constitution.

They may still do that. In the meantime, the activism of the SCOMA has awakened a public to the very real problem of judicial activism setting a social policy that most people –whether you agree with them or not – do not agree with.

And living in San Francisco, I can tell you that there is no lawlessness here. The city hasn't descended into chaos..it really hasn't. Civil disobedience will always have a place in American society (pls. see Boston Tea Party, Rosa Parks and Martin Luther King, Jr.)

Sorry but no matter how much some try to invoke MLK to try to justify every and any cause, no matter how frivolous, it is still lawlessness. What it does do though is illustrate to the rest of the country that the political GLBT really wants to have it both ways – they wish to break the law whenever they disagree with it and then if they can find an unscrupulous judge to rule in their favor, expect the rest of the country to follow the same rule of law they demonstrate such utter contempt for.

Whether one agrees with the FMA or not, its supporters do have the moral high ground from a constitutional standpoint in that they are trying to change the law through honorable means. The same cannot be said for the SCOMA and the people breaking the law in San Francisco who started this mess and now complain about the likely outcome.

'Some men have twenty wives, living a week with one, a month with another,' asserted an indignant woman delegate during the sessions of the Tzik. 'They have children with all of them, and these children are thrown on the street for lack of support!

What forced these women into such frivolous relationships? Please pardon me if I evince tremendous skepticism about the relevance of this to the situation in modern America.

Permitting incest is a wonderful way to destroy families--the "ick factor" will decline if it is legalized, and its practice will devastate people's ability to function. Certainly decriminalizing sodomy has helped to reduce the "ick factor" for homosexuality.

It's an "ick" factor to you - but heterosexual sex might be "icky" to a homosexual. Why does your "icky" trump his "icky"?

Furthermore, the law treats married couples differently in many ways, and it isn't so simple to disentangle them. For instance, should my wife get Social Security benefits when I die? Probably so--but if the state can't sanction marriage, then how will they decide how to allocate those benefits? How will immigration law handle those non-married couples who want to get in. (These are actually arguments for gay marriage, as well, and are part of why I support gay marriage).

Nobody should get Social Security - but since it's here, you designate a successor for your benefits.

Immigration law will consider each person individually - as it should.

As to the claim that consenting adults can form contractual relationships which approximate marriage, that's certainly true, and one of the reasons that I think the arguments for gay marriage are weaker than they should be. But such arrangements require substantial foresight, effort, and expense.

Two responses to this: first, shouldn't marriage also require substantial effort and foresight?

As for expense and difficulty, taking the state out of marriage would give churches a larger role, since a majority of people would probably continue to get married in a church. Now churches could advise couples on drawing up binding marriage contracts.

For other couples, I am not convinced that obtaining a standard marriage contract (such as landlords often use as leases) would be all that expensive.

None of the above arguments seem very convincing - society as we know it will collapse if we change our marriage norms at all!! - people will copulate like dogs in the street, leaving the consequent babies in the gutter!!! etc etc.

If people really are predisposed to act that way we are all doomed anyway - their natural inclinations will overtake their fear of legal consequences.

But I don't believe people are inclined to act that way at all. Consider: would you take to copulating with anyone who came by, fathering (or bearing) children without any regard for what became of them, if the state stepped out of the marriage equation? Or would such behavior only be undertaken by the "other" person, that lowlife scoundrel who just isn't as enlightened as you?

It's an "ick" factor to you - but heterosexual sex might be "icky" to a homosexual. Why does your "icky" trump his "icky"?

Bombadil, I never said a thing against homosexual sex--they can do whatever they want, as far as I'm concerned. But you implied that there were things other than laws keeping fathers from screwing their adult daughters--things which I grouped under the name "ick factor." My point, in turn, was that the law shapes our social norms, and making something illegal legal will alter how people think about it, and therefore whether or not they do it.

If people really are predisposed to act that way we are all doomed anyway - their natural inclinations will overtake their fear of legal consequences.

I'd have to say that's crap. People are "predisposed" to do all kinds of terrible things, and it is precisely social and legal strictures which lead us to control our urges. Loosening or altering those strictures will have consequences, both good and bad. Radical, rather than incremental, changes are more likely to create unforseen problems.

I'm not saying that society and the law can't function without civil marriage, I'm saying that the law and our social assuptions, as they exist, incorporate particular norms based on a long history of government involvement in marriage. Maybe that should change. But the change will both require big changes in places you might not expect and result in substantial dislocations and unforseen effects, which means that the proponents of change carry a burden much heavier than simply declaring that "churches could advise people" on marriage contracts.

Bombadil, that won't work for Social Security. The successor benefits are designed in recognition of the fact that many women sacrifice opportunities to increase their earning power, or earn FICA-qualified wages, in order to raise children. (Yes, yes, they go to childless couples; that's a by-product of the institution. But the reason that marriage joins two people as one economic unit is that two people with divergent economic interests would not be able to parent as effectively.) For that reason spouses are enabled to collect benefits as if they were their spouse after said spouse passes on. If you could just designate any old person to collect your benefits, the system would be in financial collapse almost immediately.

As for immigration law considering each person individually, that's marvelous theoretical contract law, but not very workable in practice. People aren't going to migrate without their spouses, and if they were the sort of people who abandon those with whom they've made their most important contract, would we want them in our country? Will you go down to the immigration office to tell a husband that, as a computer programmer, he's welcome, but his wife the manicurist will have to stay home?

Thorley..give me a break. POTUS is supporting this to pander to the religious right. If measures in states starting recognizing gay marriage it would be about renegade electorates in some states imposing their will on the rest of the union or renegate legislators. What ever happened to being the party of states rights?

What it does do though is illustrate to the rest of the country that the political GLBT really wants to have it both ways – they wish to break the law whenever they disagree with it and then if they can find an unscrupulous judge to rule in their favor, expect the rest of the country to follow the same rule of law they demonstrate such utter contempt for.

That's pretty much what King, Parks and the rest of the civil rights movement did in the 60s, are you going to condemn them too? And enough with this judicial activism business...complainants don't get to choose their judges, they are chosen by the legislators and governors/President. Mass. has a history of Republican governors.

Whether one agrees with the FMA or not, its supporters do have the moral high ground from a constitutional standpoint

Changing the Constitution to restrict the rights of citizens for the first time since prohibition is the moral high ground? And since when is going to the courts to redress a wrong morally "low"? I'm not sure where you stand on other issues, but I can assure you that people have gone to the courts to strike down legislation that they've thought is unconstitutional (whether successful or not). This includes things like the Assault Weapons Ban, Campaign Finance Reform, the Patriot Act, just about every ballot measure that ever passes, etc. How is this issue different?

Manish,

Most people who ask the courts to strike down laws lose. If they win, then their opponents can always try to amend the Constitution. What's your objection to the FMA?

And would you please stop mentioning the civil rights movement? When I see firehoses blasting people off the court house steps in SF, I'll take you seriously. But until then, you're just demeaning the suffering of black under Jim Crow.

I'm curious as to whether those who are in favor of homosexual marriage would restrict such to those who are actually homosexual.

In other words, would the proponents want the laws governing homosexual marriage to include provisos exactly like those for heterosexual marriage, such as the requirement that the marrige be "consumated" in order for it to be valid? This, of course, was a method of discouraging "marriages of convenience" and offered a way to void a marriage after the fact.

If a proponent of homosexual marriage agrees that such strictures should be included in the law, then wouldn't that law be discriminatory against two (or more?) heterosexual people of the same sex who wanted to be "married" for whatever reason? In other words, would you have to be homosexual to take advantage of the law?

If the proponents of homosexual marriage believe that such strictures should not be included in the law, then what would prevent two (or more?) people of the same sex becoming "married" for the sake of convenience? Would such relationships replace business partnerships since there would be a great many more benefits (not the least of which would be spousal immunity)? If the marriage law were not structured this way, wouldn't it be discriminatory?

Test

Test

Bombadil:

"Now churches could advise couples on drawing up binding marriage contracts.

For other couples, I am not convinced that obtaining a standard marriage contract (such as landlords often use as leases) would be all that expensive."

I believe that's called 'Practicing law without a license' and it's damn stupid.

Any real estate lawyer will tell you that those form lease contracts aren't worth the paper they're printed on. And those churches, they'll have to have family law attorneys on retainer. It'll cost a heck of a lot more than just state sanctioned marriage.

But on a positive note, all us lawyers will get richer.

such as the requirement that the marrige be "consumated" in order for it to be valid

Whoa. This is part of civil marriage law? How is it at all enforceable? How does the IRS enforce this restriction, for example?

God help me for weighing in on this.

Where did we get the phrases "judicial fiat" and "judicial activism"? Why should an issue like this be decided by the will of the people? It seems like those who support the marriage amendment wilfully misunderstand a principle that actually already IS enshrined in the Constitution: Legislatures reflect the will of the people. Judges decide, through reason and scholarship, what is right or wrong.

As far as I can tell, an "activist" judge is one that disagrees with you, and "judicial fiat" is a decision of which you disapprove. But frankly, once a judge makes a decision, you don't get to cry "activist" or "fiat" or "will of the people." You get to cry "dammit," and then you go cast your vote for politicians who will appoint judges who agree with you.

Isn't that why the Senate is at its own throat over judicial nominees? Because it's in the Consitution that these men and women, once appointed, are vested with so much power? It's as if everyone who makes an argument in defense of this amendment, or in defense of defending it, is making a point of ignoring a basic civics lesson that each of us had to learn just to get out of the ninth grade.

George Bush, in his inaugural speech, said something beautiful about America: that we are a country capable of correcting our mistakes. This happens in small ways all over a healthy democracy, but a strong, principled judiciary is a crucial part of it. I'm glad that we have two parties reflecting the will of the people, hashing it out every year and wringing out painful compromise on taxes and defense and social security entitlements, but some things are not a matter for the will of the people. Sometimes the people are wrong. They knew this when they built the Constitution. They wrote about it in The Federalist Papers.

I of course have an opinion here: it's despicable to deny a basic right to someone else because something about him makes you uncomfortable, and I've never seen any scholarship that so much as indicates the the child or the state suffers as a consequence of a gay marriage.

But once this matter reaches the courts, my opinion doesn't matter. Why the rush on the amendment here? Are we scared of the decisions that the judiciary is going to start making if we don't change our democracy first? Judges are changing America, judges that, in accordance with our Constitution, were appointed by people we voted into office. What about those beautiful things that George Bush said when he got elected about America's ability to change?

Maybe change is only good if it doesn't make you uncomfortable. Then, I guess, you can call it activism.

I own my body.

The state has no rights to it.

Regulating marriage is just the beginning of hte initiations of force that the state (And liberals and conservatives alike) advocate.

Every single person in this country, in cluding the democratic candidate Kerry-- who does not recognize that, is a criminal who advocates violence based on their personal preferences.

At some peoint people have to say "this is immoral" and stand up for what's right-- and using violence to force people to act the way you want is always immoral-- even if a majority supports it.

This is the flaw in democracy-- democracy does not protect the rights of the minority, and our constitutional protections are bieng eliminated a bit a time, constantly.

Jane, am I reading you correctly--you believe that there are lots of gay people out there who think that gay marriage is a winning issue for Democrats this year? Or who don't recognize what a majority of our fellow citizens believe?

This reminds me of a conversation I had with my brother the other day after my mother had a short spell to the hospital--he felt compelled to tell me that I should know that my parents have trouble with my being gay. I'm in my late 20s, he's 31, I've been out to my parents for 10 years and 5 years. The fact that he thought I was unaware of how they felt on this issue--as if it hadn't come up--and needed to tell me was sweet, but also ridiculous.

Look, I'm not all gay people in America, but I'm one closer to that definition than you are, and the idea that gay people live in this bubble where everyone agrees with us is rather absurd and condescending. Perhaps you are one who's drawing too much of her data from the Internet or the residents of Manhattan. because I live in a state that's purportedly more of a bubble than New York City and I know full well how many people disagree with this position. The gay people I know are hoping this does not become an issue because we know that every single time our marriages come up for a vote, the majority votes against us.

If nothing else, nearly all gay people contemplating marriage ave straight parents in their 50s or older, which is the same population that rates the strongest opposition to gay marriage. The issue tends to come up.

The Democratic pundits you see on tv are spinning their party's position for strength. People from both sides do this all the time. It doesn't make them naive, it makes them dishonest.

Britain33, that wasn't targeted at gays. Believe me, I'm well aware of the discrimination gays can experience. There are a number of liberal bloggers and pundits who seem to be under the illusion that because polls apparently show Americans disapprove of the amendment by a narrow margin, this is going to hurt Bush in November. More broadly, I think that the Republican base is better in touch with what their losing issues are, and that's why the Republicans are currently doing better electorally.

Contributor B contends:

Legislatures reflect the will of the people. Judges decide, through reason and scholarship, what is right or wrong.

Sorry Contributor B, but that pretty much sums up the very definition of judicial activism or judicial fiat. Put bluntly, judges aren't supposed to decide whether the law is right or wrong, but rather whether actions (in the case of Constitutional cases, individual laws or policies) fall within the scope of the law (again, in the Constitutional cases, the supreme law of the land). Its when judges see fit to override the legislative process in pursuit of their individual interpretation of right or wrong that they are justly accused of being judicial activists and governing by judicial fiat.

Contributor B, I don't think that's fair. There are rulings which are clearly activist, such as Roe v Wade, in which the courts read things that were simply never intended by the framers or lawmakers into the constitution, rights which aren't even a logical extension of the rights granted. I'm not a literalist, but there is a tangible difference between overturning obscenity laws because they violate freedom of the press, and what the Court did in Roe. One may quibble about which rulings are activist, but I don't think its reasonable to refuse to draw a distinction between judges interpreting the laws they're given, and judges deciding to essentially enact new laws in order to ensure a social outcome they favour. If it's such a grand idea, why not have judges write more laws? Why not all of them?

Nor, I think, is it reasonable to draw a clear line between civil rights and gay marriage. People trying to use the courts to do an end run around the deliberative process have been using civil rights as an excuse for half a century, and it's time to retire it; slavery and its legacy were a unique issue, written into our constitution, that ultimately had to be resolved constitutionally. That it was resolved by the courts doesn't give you carte blanche to do whatever the hell you feel like it to your fellow citizens whenver you can muster five votes in favour.

For starters, we are discussing the granting of a right which is distributed unequally, so the question is why gays deserve to be in the protected class, not whether they are being allowed to participate in a general right, or being denied equal protection under the law. Moreover, the plight of blacks in this country was created entirely by social construction; sexual and family relations are not merely socially constructed. They have biological roots and societal implications that we certainly do not fully understand. We know it is possible to create a society in which two ethnic groups co-exist; we do not yet know that it is possible to create a society in which gays are allowed to marry. It strikes me as very unlikely that gay marriage will harm anyone, but given that marriage as a union between man and woman is a cultural constant for all of history that we know, and given that social change often has unforeseen consequences, I can't guarantee that I'm right. Given that, I think it's best if we advance the change through legislation, which requires some level of consensus. Trying to enact major social change through fiat backfires much more often than it succeeds.

Most people who ask the courts to strike down laws lose. If they win, then their opponents can always try to amend the Constitution. What's your objection to the FMA?

The cases with merit that convince the judges win, all others lose. Many have no chance in hell because they are so far off base from reality. My objections to FMA are that its discriminatory and over-rides states rights. The proponents of FMA are free to push it forward if they desire and I'm free to object to it.

And would you please stop mentioning the civil rights movement? When I see firehoses blasting people off the court house steps in SF, I'll take you seriously. But until then, you're just demeaning the suffering of black under Jim Crow.

So if Mayor Newson ordered firemen to blast people off the steps you would see it as a civil rights issue? Just because the proponents haven't suffered the consequences as yet doesn't make it any less valid. The proponents can't control the actions of the opponents.

In general, I agree with your sentiment that the amendment is a bad idea...and the current brouhaha is probably an over-reaction. That said, I have issues with a couple of points:

One is that you seem to imply that this is a democrat v republican issue, which really isn't the case. There are a lot of republicans who oppose any amendment on libertarian and/or strategic grounds, and there are a lot of socially conservative, blue-collar dems who would love to see an amendment passed. Framing this as simply a partisan issues misses this important distinction.

Also, the 'activist, liberal court' label is getting tiresome. First, neither the Mass. court nor Scotus are particularly 'liberal' in either make-up or in jurisprudence. Secondly, if you read the anti-discrimination amendments, it is very clear that most of these legislative rules are factually illegal, regardless of what the original intent may have been. Is it so hard to believe that these judges made a correct legal decision on the basis of the text of the law? Or would you prefer that they favor the "intent" of the framers and current public opinion over the written content of the respective constitutions? I'll stick to the text thank you, as it allows a lot less 'activism' in the long run.

First of all, sincere apologies to Jane for using the word "despicable," which isn't really appropriate in this forum. "My opponents are evil stupid-heads" is not a particularly effective argument.

Bill - Of course I don't think it's the job of the judiciary to make moral decisions willy-nilly. You got me on semantics: yes, a judge rules on the constitutionality of a law, which is what I meant by the incautious phrasing "right or wrong." I was wrong (not unconstitutional, just wrong) to have thought that I would be granted the benefit of the doubt on a point I think we can all be assumed to understand.

But insert "constitutional or unconstitutional" for "right or wrong" and you still haven't answered the question: How is an activist judge anything other than a judge who disagrees with you?

I, for example, find Antonin Scalia to be particularly active, but he got appointed, he makes his choices and that's the end of it. I'm happy to go about my business and wait patiently until he steps down or dies.

You can hardly scream "foul" when they try to get legislators who don't lean your way to write those rights right back out again.

Yes, we can scream foul, because we understand that the entire purpose of having Bills of Rights, and independent judiciaries to enforce them, is to ensure, as Justice Jackson memorably wrote, that people's basic rights are protected from the transient whims of majorities. Furthermore, we understand that it is also essential that majorities do not get to decide what rights will and will not be protected--that is best left to the courts as well.

The fact that majorities favor making gays second class citizens does not validate attempts to do so, any more that majority support for banning interracial marriage validated such laws. There are well-established tests for what sort of legal restrictions on people's rights are permissible, and I have never seen any case against gay marriage that even came close to meeting such tests, even the rational basis test, the least stringent of them.

Bombadil:
I'm with you almost 100%. The thought of a marriage *license* is dehumanizing and frankly repugnant. The concept of marriage has most likely long predated the nation-state and I see no need for such a state to recognize it.

Jane:
You, of course, have a good point about social security...and your arguments also explain why social security is most certainly not an "entitlement" or a "trust". Once you pay into it, the money is *their* (the gov) not *your* money.

Kate:
Practicing law without knowledge of the law is of course a bad idea. Much like practicing any profession without intimate knowledge of the common wisdom and mechanics of the discipline. However, in any truly representative nation the law is, and always must be, the domain of the people.

If your distaste for standard contracts is their lack of security, consider that there probably is no such thing as a "bullet proof" contract. Nonetheless, standard contracts are in ubiquitous use in everything from marriage (pre-nuptials, etc), business partnerships, and leases to the simple receipt at your local grocery store.

So we have this phrase: "legislating from the bench" -- an improper legislative use of judiciary authority. What do we call Musgrave's amendment, then, an improper judiciary use of legislative authority?

"Judging from the floor"? "Benching from the ballot"?

But reserving marriage for a man and a woman is hardly the "transient whim of a majority", Mark. Pretending that the concerns of your opponents are trivial does not answer them, nor advance society's attempt to grapple with a difficult issue.

Contributor B -- I don't understand your argument. Writing leglislation and amendments is the proper function of legislators, just as determining how they will be applied to specific cases is the proper function of the courts. Congress may be wrong, as I believe they are, to write this particular amendment, but I don't see how you can argue that they are exceeding their mandate to do so.

And "activism" doesn't only pertain to things I disagree with; I'm pro-choice, but I think Roe is a clear case of the supreme court overstepping its mandate. I've heard similar arguments about the recent sodomy case, whose outcome I also supported. It may well be true that many people only complain about judicial activism when it goes against their desires, but that doesn't mean that it doesn't exist--or that it is a positive or even a neutral force--any more than corruption is good or neutral because only Republicans hated Bob Torricelli.

Contributor B: How can Musgrave's amendment be "an improper judiciary use of legislative authority?" The Constitution provides the method for its amendment. How can using that method be unconstitutional (or in any other way improper)? You may think that the amendment represents bad policy, but the amendment process itself is called for in the Constitution.

On the other hand, judges have been known to go beyond the legitimate scope of their authority. Sometimes they do this in small ways, such as when a traffic court judge required me to attend a defensive driving class soon after I started driving. (I contested a ticket and lost. After ordering me to take the class, the judge admitted to my Dad that I was innocent but that the class would do me good.) Sometimes they exceed their authority in larger ways, such as redefining marriage to suit their personal prejudices. (Their reasoning: There is no rational basis to treat gays differently when it comes to marriage. Is Jane unreasonable to point out that this change may cost the government millions of dollars in social security, pensions, and tax benefits? Just because the judges have seen the light before the majority of the rest of the country does not mean that all objections to gay marriage are the mere result of bigotry. Besides, if the reading of the text so obviously required this result, why didn't all the justices concur?)

Just as some police officers sometimes abuse their authority, so, too, do some judges. We can take the cops to court, what do with the judges -- if we can't amend the constitution?

Personally, I think there is only one new amendment that is needed. It is one that would subject all US Supreme Court and Circuit Courts of Appeal decisions to an override vote of 2/3 of each house of Congress:)

That would even the scales right away. Wait a minute; that would mean Congress would have to quit passing the buck to the courts. My bad.

Contributor B sez:
"Legislatures reflect the will of the people. Judges decide, through reason and scholarship, what is right or wrong."

No. Proper judges decide what the law says in a particular case.
*Liberal activist* judges think they get to decide what is right and wrong.

But reserving marriage for a man and a woman is hardly the "transient whim of a majority", Mark. Pretending that the concerns of your opponents are trivial does not answer them, nor advance society's attempt to grapple with a difficult issue.

However, "reserving marriage for a man and a woman" still has to pass the tests for a legitimate restriction of rights, irrespective of the "transience" of the majority in favor of doing so. As I noted, I have never seen a case that doing so would pass even the "rational basis" test, the least restrictive test, much less tests like the strict scrutiny standard.

"Sometimes they exceed their authority in larger ways, such as redefining marriage to suit their personal prejudices....Besides, if the reading of the text so obviously required this result, why didn't all the justices concur?"

I have to disgree with you strongly here, David. The judges only "redefined marriage," are only "activist," because their reading of the MA Constitution differs from yours. They had a case to decide, and had to draw some conclusion as to what the Constitution had to say. You disagree with their conclusion. OK. But that doesn't automatically make them wrong. And the fact that the decision wasn't unanimous doesn't make it wrong either. Clearcut matters seldom get to the SJC (not "SCOMA," please).

Mark sez:
"However, "reserving marriage for a man and a woman" still has to pass the tests for a legitimate restriction of rights"

Which in the case of a Constitutional amendemnt is "66 senators and 75 state lesgislatures think it's a good idea."

"I have never seen a case that doing so would pass even the "rational basis"test"

How about the "precautionary principle" test. When a major change to something important is proposed, it is up to the proposers to prove that it will do no harm.

While I'm in favor of gay marriage, I admit that the above is the core of a legitimate "conservative" objection to gay it.

Rob Lyman said:
Bombadil, I never said a thing against homosexual sex--they can do whatever they want, as far as I'm concerned. But you implied that there were things other than laws keeping fathers from screwing their adult daughters--things which I grouped under the name "ick factor." My point, in turn, was that the law shapes our social norms, and making something illegal legal will alter how people think about it, and therefore whether or not they do it.

Mr. Lyman, you said:
Permitting incest is a wonderful way to destroy families--the "ick factor" will decline if it is legalized, and its practice will devastate people's ability to function. Certainly decriminalizing sodomy has helped to reduce the "ick factor" for homosexuality.

But whichever "ick" factor you like - why does your opinion of a consensual incestuous relationship between two adults trump their right to engage in such a relationship?

In response to my observation that if people are generally inclined to reproduce without a moment's thought for the resulting children laws won't make a difference anyway, you said:

I'd have to say that's crap. People are "predisposed" to do all kinds of terrible things, and it is precisely social and legal strictures which lead us to control our urges.

Which kinds of terrible things? Name one terrible act which you or someone you know are restrained from doing only by that act's illegality. Murder? Rape? Robbery? I don't think people are generally predisposed to doing these things ... and we have laws against them because there are victims.

And besides, I never said that people shouldn't be held responsible for children they create. What in the world does that have to do with civil marriage?

It comes down to this: if you support state-controlled marriage, you must support the idea that there is, in marriage, something so overwhelmingly beneficial or necessary to society that everyone must be made to pay for it, whether they themselves are married or not. Simultaneously, you must believe that there is nothing so beneficial in marriage that people would not enter into that arrangement voluntarily - they must be bribed with special legal priviledges etc. Finally, you must believe that only a certain type of arrangement (man and woman, not two men, two women, two women and a man, etc) offers such benefits, so much so that while everyone must be made to pay for the legal arrangement, the other arrangement must be banned by law.

Jane Galt, you said:
The successor benefits are designed in recognition of the fact that many women sacrifice opportunities to increase their earning power, or earn FICA-qualified wages, in order to raise children.

But by that logic, shouldn't men be barred from getting successor benefits if their wife dies?

Or how about this: my mother recently got remarried (she is in her mid-50s). She won't be having any more children, and she won't be making any career sacrifices - but she will be eligible for successor benefits. If I entered into a homosexual relationship that lasted 35 years, raising my own children over whom I had somehow acquired custody, and my significant other sacrificed his career to devote more time to the children, are you saying my mother would be more deserving of a successor benefit than he? I don't understand that at all.

Kate, I think people enter into contracts all the time without consulting lawyers. For example, I signed a contract when my cable installer installed cable. I signed a contract when I bought my car, when I rented my apartment, when I got my cellphone, when I opened my checking account. I signed a contract with my health club. I didn't consult a lawyer for any of those things, which might have been stupid but is (IMO) pretty damn common.

Do I equate any of those things with marriage? Nope. Perhaps it would indeed be a good idea to consult a lawyer prior to getting married - do you disagree? Maybe all parties involved would have a clearer understanding of their obligations. But I don't see why this would impose a ruinous expense - especially since it would be optional.

BTW, I apologize for the long delay between posts - it was a very busy day.

Sorry, missed this bit from Jane Galt:
As for immigration law considering each person individually, that's marvelous theoretical contract law, but not very workable in practice. People aren't going to migrate without their spouses, and if they were the sort of people who abandon those with whom they've made their most important contract, would we want them in our country? Will you go down to the immigration office to tell a husband that, as a computer programmer, he's welcome, but his wife the manicurist will have to stay home?

I think that the two individuals should be considered for admission to the United States individually. If neither is objectionable (say, a terrorist) then let them in. If either one is, why would the desirability of the other mitigate that? The husband is a bombmaker for the PLO, but the wife is a talented programmer so it's ok? The wife can choose not to come to this country if she can't bear to be separated from her bombmaker husband.

But let's turn your argument on it's side for a second: now the husband is a greatly talented programmer, but he has three wives. In this scenario, you are the one telling him he can come in, but a couple of his wives will have to stay behind.

Of course, I am a fan of much easier immigration to this country, as well - but that really is another topic.

"People are not going to decide who to vote for based on what they do, or do not believe, about the rights of a tiny percentage of the population to wed. A couple of libertarians, maybe, but I think we libertarians all know that the majority of the population does not share our particular fixations."

Please, Megan. While not many Americans will let this issue sway their vote, several percent of them certainly will -- and most of them won't be on the libertarian side. (A fact confirmed, sure enough, by last night's Gallup poll -- the supporters of the amendment feel much more strongly about it than its opponents.) Why on Earth do you think Bush came out for this thing, if not to try to get a little more political support in a race where that few percent may make the difference?

The best strategy for its opponents, I think, will be to keep pressing Bush as to how he feels about gay secular civil unions with all the legal rights of marriage. Which -- from the point of view of valid gay rights -- is all that needs to be supported by the government anyway (and I speak as a gay). Make him squirm on that one, and keep bringing up Cheney's daughter.

Make that "all the legal rights of CHILDLESS marriage".

A Question: Where is it written that marriage is a "Right" ? If so, then some Mormons have had their "Right" to polygamy denied to them for about the last 150 yrs. I love my sister, so can I exercise my "Right" to marry her? The fact that I love my wife won't interfere, as bigamy laws should be unconstitutional also. Am I correct in this supposition?

Well, Beloney, it was William Safire who proposed in a NY Times column a couple of years ago that polygamy and polyandry for consenting adults should be perfectly legal.

"People are not going to decide who to vote for based on what they do, or do not believe, about the rights of a tiny percentage of the population to wed."

I don't know, that whole civil rights thing only dealt with 10% of the population too, and it somehow ended up being a big deal.

And anecdotely, this is going to drive the remaining gay population out of the GOP.

Bernard - You don't HAVE to disagree with me, but I don't mind that you did. At least, that way, I know someone read my post. :)

I agree with your factual statement, but not your conclusion: Simple and straightforward issues seldom make it to our higher courts. But in this case, the SJC of MA (did I get that right?) based their entire argument on the complete irrationality of denying the legal status of marriage to gay couples. (That's a hyperbolic reduction of their argument, but it's fairly accurate.) Not only is the argument terribly insulting to anyone who disagrees (you must be irrational, a bigot, or both), it is false on its face. It does not take much thought or imagination to come up with lots of rational reasons for why gays should not be allowed into the preferred class of married couples.

Three of the four justices did not vote to grant gay couples the right to marry, did the majority intend to call their peers irrational (bigots)? That's what they did, because if the minority had come up with a SINGLE rational basis for maintaining the status quo the majority's argument fails. Again, the premise of the majority was the MA constitution mandates this result because there are no rational reasons not to allow gays to marry. If the minority had come up with a rational reason, the majority would have HAD to come to a different conclusion. Since they didn't, we must conclude the majority found the minority's arguments irrational. (Wouldn't you have loved to sit in on the court's conferences?)

One last point, in this post I've taken as a given that there are several rational reasons for denying gays marriage. Several posters have mentioned a few of them: Differing demographics (in particular, health and mortality rates) will cause untold chaos for spousal benefits programs for employers and governments. Differing tax rates for married couples and singles will "cost" government millions (or billions, depending on your time period and other assumptions). Gay marriage is a radical departure from what human society has done before. No one knows for sure the societal changes that will result, for good or ill, from gay marriage. It takes an ego far larger than mine to conclude with such certainty that any societal changes will be so overwhelming positive that it's irrational to even worry about what they might be.

Okay, another point: Despite having taken as a granted in my prior post that there are rational reasons not to allow gays to marry, I am not saying that any or all of these objections cannot be overcome. I am saying that it is insulting for proponents of gay marriage to frame their argument on the premise that the only reasons to disagree are irrational or based in prejudice. I am an accountant by training and personality. I look at personal and business transactions from every possible angle and try to anticipate every possible outcome before I am comfortable making a decision. I prefer small, incremental changes, thank you very much.

I think there are millions of my fellow citizens who feel much the same way. So, make your case. Just don't call us irrational (or worse) because we don't see what is so obvious to you. It's not a fair way to debate and it does nothing to advance your cause -- assuming your cause is to persuade us of the correctness of your view. If, however, your cause is to ram a change down our throats via pliable judges, I hope you'll understand why we won't have the decency to simply swallow the change whole. Expect a lot of chewing and spitting.

Bombadil,

What sorts of terrible things? Well, right now I feel like punching you. ;)

Seriously, if murder were legal, there would be more murders. And, over time, society would come to regard murder as a normal way of solving problems. Removing the legal constraint on murder would inevitiably weaken the moral and social constraints on it. Have a look at societies where dueling was an accepted practice. Did people duel more than today? That is certainly true of homosexuality, and would also be true of incest.

But why would I care? Because incest destroys families. Do you really think that a girl whose father penetrates her for the first time on her 18th birthday has given her a normal upbringing? Do you think that it will be possible to have an innocent and healthy childhood if your brothers and sisters view you as a sex object? Many families would not be like that, even in the absence of legal strictures, but more certainly would be, to the detriment of both the people in them as society at large.

Likewise, the decriminalization, and greater social acceptance, of premarital sex has led to more sex, and of course, more single mothers.

Finally, it is perfectly consistent to think that marriage is simultaneously 1) beneficial enough to society to make it worthy of state protection, and 2) not beneficial enough to individuals to induce them to enter it without state bribery. Taxes are beneficial to soceity, but I probably wouldn't pay them if I didn't have to. Nor is there any logical reason that marriage couldn't be restricted to certain classes of people, such as childbearing couples. It may well be that letting your mother marry isn't worth the expense to taxpayers.

Mark,

Marriage isn't a "right" like free speech, which entitles you to freedom from government interference. It's an affirmative act by the government, undertaken because it offers benefits to society. In that sense, it more closely resembles government art subsidies. If the government doesn't want to pay you for your art because it thinks that human feces in a glass jar don't advance worthy social goals, that isn't a violation of the 1st Amendment. If the government doesn't want you to have the benefits of marriage because your marriage won't advance worthy social goals, too bad for you.

Manish,

If you absolutly insist on the civil-rights analogy, I suppose we should get it right: Mayor Newsom is playing the role of Wallace and Fabus, refusing to obey the law. The people getting married may well be analogous to the Freedom Riders, except that their "suffering" consists of not getting married, rather than getting arrested, beaten up, lynched, etc.

Marriage isn't a "right" like free speech, which entitles you to freedom from government interference. It's an affirmative act by the government, undertaken because it offers benefits to society. In that sense, it more closely resembles government art subsidies.

Rob, your argument is much the same as one Richard Posner made recently in The New REpublic, so you are in good company--in being wrong. It is erroneous to equate the myriad benefits governments give to married couples with art subsidies--one is a generally available benefit being arbitrarily denied to a few, the other is not.

Mark,

Which is which?

And I didn't equate them, I analogized them. And I must say, the analogy between the right to vote and the "right" to marry seems pretty thin to me.

Mark,

Which is which?

And I didn't equate them, I analogized them. And I must say, the analogy between the right to vote or the right to free speech and the "right" to marry seems pretty thin to me.

Mark - The fact a benefit is generally available to a large group does not, in and of itself, demonstrate that it is been arbitrarily denied to those who are not members of that group. For example, we give lots of tax breaks to homeowners. These breaks are not available to renters. This may or may not be good public policy, but I would hope the courts would see this as a legitimate choice open to Congress. Congress wants to encourage home ownership (and, perhaps, buy votes). There is a general feeling that homeownership benefits society and should be encouraged.

How is this different than gay marriage? There is a general feeling that traditional marriage benefits society and ought to be encouraged. I don't think the same feeling exists for gay marriage. Not that gay couples should be punished, anymore than renters should be punished. There is a big difference between behavior that society is indifferent to and behavior that society actively encourages.

"Ms. McArdle: "Bombadil, that won't work for Social Security. The successor benefits are designed in recognition of the fact that many women sacrifice opportunities to increase their earning power, or earn FICA-qualified wages, in order to raise children. (Yes, yes, they go to childless couples; that's a by-product of the institution. But the reason that marriage joins two people as one economic unit is that two people with divergent economic interests would not be able to parent as effectively.) For that reason spouses are enabled to collect benefits as if they were their spouse after said spouse passes on. If you could just designate any old person to collect your benefits, the system would be in financial collapse almost immediately."

Which just confirms again that gay marriages (or gay civil unions, if one prefers to call them that) should be treated legally in exactly the same way as childless heterosexual marriages. Economic benefits (including Soc Sec) for people who say that they "intend" to have children should instead be limited to those people who actually do have children. (Which, by the way, includes homosexual couples who adopt.)

As for the "possible harmful social and psychological effects" of legalizing gay secular marriages which so many contributors (including Ms. McArdle) keep muttering about darkly: please try to actually name a few. I cannot conceive of any possible ones, not being one of those ludicrous people (including the President) who solemnly announce that heterosexuals who love each other will be less wiling to live together faithfully with each othe if those awful homosexuals are allowed to do the same thing.

By contrast, legalized multiple-spouse marriage -- which really does represent a radically different types of human emotional relationship -- might really have some harmful social and psychological effects, and caution is indeed called for in legalizing it.

From Jane:
Congress may be wrong, as I believe they are, to write this particular amendment, but I don't see how you can argue that they are exceeding their mandate to do so.

From David Walser:
Just as some police officers sometimes abuse their authority, so, too, do some judges. We can take the cops to court, what do with the judges -- if we can't amend the constitution?

No, of course an amendment isn't unconstitutional. But if you're going to allow yourself to decide that a court has exceeded its mandate - as in Massachusetts or in the case of your unfortunate traffic ticket - why do you get to say "but it's in the Constitution" when a legislator does the exact same thing? How, please explain, is Musgrave anything but an "activist legislator"?

You're content to let this get hashed out in legislatures, Jane, and I'm content to let it get hashed out in courts. But that's good. It's great. We want that kind of tension and decision-making going on in our country. You said that, if I understood correctly, that the Massachusetts decision was a "fiat," an "end run." What is this amendment but an end-run around decisions being made at the state level?

Sure, it's constitutional, and if it gets approved by two-thirds of the states I'm not going to move to France or anything. But let's see it for what it is: an attempt to head off a couple of years of state decisions that they fear aren't going to go their way.

Which leads us to:

David:
Ram a change down our throats via pliable judges

Jane:
We know it is possible to create a society in which two ethnic groups co-exist; we do not yet know that it is possible to create a society in which gays are allowed to marry. It strikes me as very unlikely that gay marriage will harm anyone, but given that marriage as a union between man and woman is a cultural constant for all of history that we know, and given that social change often has unforeseen consequences, I can't guarantee that I'm right.

Why this strange caution, Jane? It's not enough to just establish that we don't know the consequences of our actions. We don't know the consequences of a lot of things we let the state decide; why single this one out?

I'm not suggesting that we throw caution to the wind, I just don't understand why it's suddenly become really important here. Gays have owned property together and cohabitated for a long time, and not just in our century. Didn't we used to call that a "Boston marriage?" We've codified plenty of social change in the last two centuries of institutions that had endured throughout history, or is there a state I've forgotten about that allows you to marry an 11-year-old?

As for the economic argument, didn't manufacturers at the turn of the last century argue that the five-day work-week would hamper productivity? Kind of makes you wish we enjoyed nineteenth-century productivity, doesn't it? Come on, this argument isn't about economics for anyone, on any side. The majority party in Congress, at any rate, is going to have to fight a lot harder to reign in the deficit before claiming any legitimacy on the sudden concern over social security entitlements for gay spouses.

I don't know, it just seems like the arguments against gay marriage are flung from all sorts of directions in the hopes that one or two of them stick. The only real coherent thread among them seems to be this: gays make me uncomfortable. Which is why I included David's comments: why such a visceral phrasing, "ramming down my throat," for people that just want to get married and return to their homes and not have anything to do with you?

Fiscal profligacy, now THAT was rammed down my throat; it's going to cost me and my children a lot of money, and I can't avoid it, not unless I want to become a citizen of Norway. But gay marriage? I don't get it; all I have to do to avoid having gay marriage rammed down my throat is to marry a woman and love her for the rest of my life.

Yes, Bruce, if we all lived in fantasy world where we could instantly alter our legal and cultural institutions to set up our own perfect world, and then force all the other people in that world to go along with it.

Marriage is a very old institution, woven into our culture. In this country, because we recognize a secular purpose to marriage (unlike, say, Israel, which recognizes only religious marriages), it is also interwoven with our state. Changing the laws regarding marriage will, like it or not, wreak a major change on the cultural institution itself. And discussing how marriage would look if we could somehow start from scratch and build our society all over again is not useful in this context: we are contemplating making an actual, enormous change to the insitution right now, in the world we live in, and it will be executed in the context of all the other cultural and legal baggage we have, not in the context of our imaginary world where marriage is just a tax break for having kids. We aren't going to re-write the social security laws to exclude childless couples or make any of the other changes that various hard core libertarians and liberals have suggested, because we're still living in a democracy with 280 million other citizens who are going to get in the way of redesigning the entire system to suit us, a phenomenon that my libertarian brethren should be quite familiar with from all the other things they won't let us redesign. Given that, let's discuss whether the proposed alterations are going to be a net positive or negative in the context in which they will actually happen, not in the imaginary world where it would all be perfectly lovely, all right?

Sheesh, Ms. Galt is starting to sound like a conservative! (Gasps from the audience...)

Contributor B: Just because you cannot see any potential problems with gay marriage does not mean that they may not, in fact, exist. Some 40 years ago, well intentioned people declared war on poverty. Proponents of the war on poverty told the the rest of the country that there was no need to worry about any ill effect of welfare on society. After all, no one was going to get pregnant just so they would qualify for a few dollars from the government and nobody would avoid taking a job if work were available. The history of the war on poverty is that the well intentioned changes had some very nasty effects on society. It turns out welfare did create an incentive to not marry, to have children, and to avoid work. It also turns out that lots of people responded to those incentives.

Welfare was minor league compared to the changes gay marriage might portend. Pardon me if I find your assurances that there is nothing to worry about unsatisfactory. I am sure you are well intentioned (and I am insulted you won't grant me the same), but good will does not mean your desired changes will produce good results.

Contributor B, saying "Critics of change X said the sky would fall and it didn't" aren't useful; one can pull up just as many examples where critics of change Y said the sky would fall and oops! it did.

As a libertarian, I am suspicious of attempts to make sweeping changes to institutions, whether they be market institutions, cultural institutions, or others, via the law. Law is an extremely blunt instrument, and its makers never understand all the changes they will set in motion. And court decisions, or constitutional amendments are the worst sort of instrument; they are generally extremely blunt, and they do not admit of error. Incremental social change can be undone, to some extent, if we realize we are seriously in error; laws can be repealed by legislatures or overturned by courts who have the luxury of seeing how they look in practice. Constitutional amendments or supreme court decisions, on the other hand, are damn near immutable. I am not so arrogant, so sure of my understanding of the impact this will have on our society, as to be willing to codify my preferences in stone before society is ready. I also think that this feeds into a very unhealthy culture war in this country. Tell the vast middle "fuck you, we'll do what we want on gay marriage and you'll suck it up because we've got the courts," and what you'll ultimately succeed in doing is giving the Republicans a 60 vote majority to pack the courts. And if you're planning to get upset at the sorts of rulings those judges are likely to deliver, where will you take refuge? You've said it's perfectly legitimate to use a one vote majority on the supreme court to ram your opinions down the throats of the half of the country that disagrees with you.

I'm second to none in my hatred of the budget deficit, but I don't see what that has to do with the question of whether small numbers of judges should be altering by fiat a social institution that affects 85% of the people in the country. The deficit spending was done legislatively, not judicially. It's also at least as much the fault of your party as the other side; LBJ and FDR were the primary architects of the deficit that matters, which is the $45 trillion unfunded liability for Social Security. This dwarfs our current downturn, of which only about half is the fault of Bush's tax cuts or military spending. And by demagoguing Medicare/Social Security, the Democrats just forced the Republicans to expand the Medicare entitlement that's already bankrupting us.

As I say, I'm in favour of gay marriage. But the country isn't ready for it. And I think forcing the matter will not, ultimately, advance the cause of liberty for anyone. I think a federal amendment on the matter is ridiculous, but that doesn't mean I want a supreme court ruling going the other way. Eventually the cultural change will advance to the point where such laws will seem a quaint anachronism, like laws restricting birth control to married couples, and we'll change them. But try to force it on a public that isn't ready, and you'll only redouble their efforts to get themselves into a legislative position where they can deliver the treatment the supremes gave them 30 years ago right back to the coasts.

Eventually the cultural change will advance to the point where such laws will seem a quaint anachronism, like laws restricting birth control to married couples, and we'll change them.

Those laws, of course, were not changed by legislatures, but by the Supreme Court, in a fairly gratuitous swipe at laws rapidly declining in popularity:

Eisenstadt v. Baird, 405 U.S. 438 (1972)

First...I'm not sure how 'sweeping' a change it is for a couple of states to start marrying gays. I mean seriously, we are talking about a tiny fraction of the population of the states. (Not to mention the fact that straights have done an awful lot of damage to the institution already.)

Secondly, many of the greatest accomplishments of our country have come through revolutions in legal doctrine (and frequently specifically through the courts)...to say you are "suspicious" of sweeping legal change sounds a little vacuous.

Also, you state "Constitutional amendments or supreme court decisions, on the other hand, are damn near immutable." Ummm...seperate but equal? prohibition? And if you believe marriage for gays is morally right, then precisely why should we want it to be reversible, anyway?

All that said, it certainly seems like your biggest concern is that the courts have gone against public sentiment/majority opinion, or that they have not considered the fact that they may be provoking a backlash. But that is not the Courts responsibility! They are SUPPOSED to ignore common sentiment and read only the law. And as I said before, the text of the non-discrimination amendements in both Mass. and CA are fairly clear. What would you have the courts do instead? Should they have said 'the text clearly says no discrimination based on sex...but in this case we are going to allow it anyway, just because the polls tell us to'? If you believe in the rule of law, then that is definitely the worse of two evils.

Whoah. To mention the deficit is not to get partisan, unless a number of Republican members of Congress are partisan, 'cause they're talking about it, too. Nothing in my posts indicates that I'm a Chomsky-loving flag-burner, and I'd appreciate not getting treated like one. So Jane, yeah, you're right that LBJ and FDR were worse on that count than GWB. So you got me, it's all the Democrats' fault we're where we are, but that wasn't the point at all of what I wrote, a pretty clear point about what is and is not being rammed down my throat right now.

I don't think you're evil because you're in any way cautious about supporting gay marriage (In fact I've already specifically apologized for this, and I'll do it again: I don't think you guys are evil.) so don't make me into some kind of flaky liberal just because I continue to disagree with your rational, considered libertarianism.

I never, David, said that there would be no unintended consequences to allowing gay marriage, and you're right, Jane, that pointing out examples of social change that didn't cost us a lot of money doesn't prove that this one won't. My point is that this debate isn't even remotely about money or policy, for either side. You don't have to extend me the benefit of the doubt: I'm not trying to produce good economic results here. But neither is the amendment specifically, or the fight against gay marriage generally, trying to avoid bad economic results. This is not a question of social engineering, in which case I would agree with you: proceed cautiously, state by state, and let California fuck it up before you do ANYTHING.

It is a question of rights and morals, for both sides. Are you really telling me that Musgrave introduced her amendment for fear of a crisis of fiscal policy and incentive-based behavior?

She did it because she was worried that states would slowly begin to recognize gay marriage until it was too late to stop it, that homosexuals would move to Hawaii and Massachusetts and Vermont God knows where else and the sky wouldn't fall. Please, please, say what you want but at least answer this question: how is this not legislative activism? How is this action not a fiat? How is this not ramming something down a country's throat, an end-run around a long fight she's worried might not go her way? Why are the words "activism," "fiat," and "ramming" reserved for the flaky "want it all now" liberals?

Eventually the cultural change will advance to the point where such laws will seem a quaint anachronism, like laws restricting birth control to married couples, and we'll change them.

But how is this supposed to happen if we don't allow this fight to continue, state for state, and eventually work its way up to the Supreme Court? How is cultural change supposed to happen if people don't at some point go to a courthouse and say "This isn't right"? Isn't that the point of the Constitution? A long, never-ending process of respectful dissent? "Just sit tight," is what I'm hearing, "we'll get around to it in a generation or two." This is fair position for a cautious straight libertarian, but you have to see why it might make a cautious gay libertarian fly to San Francisco RIGHT NOW, while the marrying is good, and "ram" his or her gayness "down your throat."

It's not like they're asking for a national Judy Garland day, or preferential treatment at state universities, or special subsidies for coming-out counseling. It's a simple request for equal treatment under the law, the potential devastating consequences of which no one can really demonstrate or even seem postulate clearly.

Are we to never act for fear of consequences? Because we are aware of the existence of unknown unkowns?

Contributor B, I'm not sure what we're arguing about here. I'm against a constitutional amendment on this. I'm for gay marriage. I just think it should be accomplished legislatively, not judicially. I'm not arguing against the goal of social change, but against judicial fiat as a means of accomplishing it. And I think I'm on solid ground. Just to offer one example: civil rights did a good job of removing legal barriers to equality, but a lousy job of removing racial prejudice. Given that marriage is a social, as well as a legal institution (and not one that, like Jim Crow, we want to get rid of), I think it's safer to keep the government out of it until the social half of the equation is prepared for it. It isn't now.

And as a matter of political policy, I don't think it either wise or moral to empower our own side to use means that we would consider illegitimate in the hands of our opponents. I would consider it illegitimate abuse of authority if, for example, judges started ruling that prayer was legal or mandatory in schools, that evolution shouldn't be taught, or that some judge's idea of obscenity should determine what sort of reading material I have access to; thus, I forbear empowering judges to make those sorts of decisions at all.

Let me put it this way: what is it you find so disturbing about this amendment? It can't be the content; it won't be significantly different in effect from the Defense of Marriage Act.

What's so upsetting about it is that it's an amendment. It's walking in by fiat and declaring that no one in the country is allowed to practice an opinion about gay marriage different from the legislators sponsoring this thing.

And that anger, that rage you feel at having these guys irreparably jam this down your throats -- an anger that, I submit, is different from how you feel about the budget deficit, and much different from how you would feel about the budget deficit if you examined just how much taxes would have to rise, and social spending be cut, in order to make the country solvent on a financial accounting basis -- is exactly how a lot of people feel about being told that they can't have any abortion laws other than Roe, can't let anyone put up a nativity scene in some Alabama public square if an ACLU member lives within a hundred miles, and so on. They feel that they're having someone else's morality jammed down their throats. And I submit first, that they are right; and second, that we are better off as a country if we limit such judicial activity to cases like civil rights, where the affected minority has been systematically denied political redress. Gays haven't, and women wanting abortions weren't, and I therefore submit that the legislature, and not the courts, are the proper forum to press their claims.

Contributor B: I think I've finaly understood your argument. How is the amendment process different as a form of activisim than the judicial activisim I've been complaining about? First, it's different in how it's brought about. The amendment is the result of the political process, the other (by design) is insulated from that proceess. One is the express result of the will of the people (through their elected representatives) the other is imposed without respect to the desires of the people. Second, the type of amendment I would favor would not prevent the individual states from adopting civil unions. It would simply prohibit a single state court from imposing gay marriage on the rest of the nation -- which is the practical result of what the SJC of MA did. (In response to that decision, we have such marriages in SF, and soon in a county in NM and another city in NY. None of this reflects the will of the people of those states -- CA just overwhelminly adopted a law by voter iniative that prohibits gay marriage.) Bottom line: If the citizens of my state, AZ, were to adopt gay marriage, I might not like it, but I wouldn't feel like it was being rammed down my throat. I am used to both winning and losing political arguments. I like winning, but I accept losing. Having some judges, here in AZ or elsewhere, make this decision for us is just something altogether different.

So, at bottom I am not afraid of a state-by-state process. It's the SJC of MA that STOPPED that process. I view the amendment as the only way of turning that process back on. 'Nuff said?

Megan, what Contributor B has pointed out is that the anti-gay marriage amendment being pushed by most conservative activists -- and not opposed by Bush -- doesn't just interfere with "activist judges"; it explicitly forbids individual state elected governments from leaglizing gay marriage. And as for your "slow and steady" argument; it's strikingly reminiscent of the argument of certain fence-straddling soutehrners during the early Sixites that the Civil Rights revolution was OK except that it was coming MUCH too fast. We've got to start reforming SOMEWHERE.

So the people won't allow a cutoff of extra SocSec to childless heterosexual married couples -- yet? Fine. Then start advocating it as a future goal, while pointing out that it's hypocritical to provide it to such couples while not providing it to similar gay couples. Since the public is already split about 50-50 in the polls as to whether to "legalize gay civil unions with all the economic rights of traditional marriages" (to quote Gallup) -- and since there's an utterly gigantic age-related gap apparent in every poll in the opinions of the voters on gay rights -- you might get more sympathy on this than you think. You certainly won't get such desirable results if you refuse to start pushing for them at all right now on the grounds that they will occur only in the future.

Andrew Sullivan on the precise nature of the anti-gay marriage amendment:

"THE NYT GETS MARRIAGE WRONG - AGAIN: It's another display of ignorance on the part of the New York Times, when it comes to marriage equality. They've swallowed the religious right lie about their constitutional amendment completely. David Kirkpatrick, the new reporter for 'conservatives,' is the latest offender.

"Here's the error: Kirkpatrick describes the Musgrave Amendment (which will be the actual text that's introduced) as one that 'would allow state legislatures to recognize gay civil unions, a provision that had alienated many conservatives.' But that simply isn't true. There were three possible amendments: one that stated in one sentence that civil marriage was between a man and a woman and by its silence let states do what they want on civil unions; the Musgrave one that restricts marriage to heterosexuals but also says that none of the benefits or legal incidents of marriage may be applied to 'unmarried,' i.e. gay couples, thereby making civil unions void (all they are is a collection of incidents available to married couples); and a third one that would have barred marriage for gays, but allowed civil unions - if they were extended to all couples, regardless of any implied sexual conduct. The Musgrave Amendment is by far the most extreme. And it is the one that has been selected. Kirkpatrick makes it out to be the moderate compromise. What was he thinking?

"THE TEXT: The critical evidence is the actual text of the Alliance For Marriage/Musgrave amendment, which Kirkpatrick omits. That in itself is a bizarre lacuna. Here it is:

" 'Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or THE LEGAL INCIDENTS THEREOF be conferred upon unmarried couples or groups.'

"My italics. All the legal incidents thereof. That language doesn't need to be in there if you're just banning marriage for gays. If you merely wanted to keep the word marriage from gays, you would simply withhold 'marital status.' But by barring 'all the legal incidents' of marriage - in state or federal law - the amendment would render all civil unions and domestic partnerships legally and constitutionally void everywhere in America. The religious right know what they're doing. And they use the word 'construe' - not 'judicially construe' - but simpy "construe" - to make this amendment as devastating to gay couples' rights as they possibly can. This isn't just about restraining courts from protecting gay couples. It isn't about protecting the word marriage. It's about removing every single civil and legal protection gay couples have. That's why the religious right has signed on.

"On this critical matter - which has already been threshed out in many places - Kirkpatrick gets it wrong. Echoing the far right's lie will reverberate and make it harder for the truth to get out there. After the last marriage article debacle, you'd think the NYT would have put this kind of piece through a very careful fact-check. But on the most important aspect of this amendment, they got it wrong. Again."

This is Contributor B, by the way, I just got embarrassed that I was arguing without using my real name. The Internet is in many ways a lame and wierd place; what if I showed up at a party in your house and introduced myself as "Contributor B"? And then started sniffing disdainfully at the quality of your gin?

Jane, please don't imply that I'd feel a little different about the deficit if I just examined it more closely; you're not the only one posting who reads the business section. I know you can't run the government like a bake sale; you don't have to insist on solvency on a financial accounting basis to be disgusted, for example, by last year's farm subsidy dump.

...civil rights did a good job of removing legal barriers to equality, but a lousy job of removing racial prejudice. Given that marriage is a social, as well as a legal institution (and not one that, like Jim Crow, we want to get rid of), I think it's safer to keep the government out of it until the social half of the equation is prepared for it. It isn't now.

Yes, racial prejudice is alive but harder to get away with now, but how does that set you up for the second half of your argument? You start by saying that we never got rid of racism, then finish up by saying that we need to wait until the country socially accepts gay marriage.

When and how is this going to happen? How do we measure it? How is it going to happen for gays when, as you just pointed out, it still hasn't happened for blacks?

It seems like you're comparing Jim Crow to marriage, but no one (at least no one sane) is suggesting that we strike down marriage itself as unfair. Jim Crow restricted certain kinds of rights from certain kinds of citizens; isn't it more comparable to statutes on the books restricting or prohibiting gay marriage?

You can't choose now to bring government into this issue; it's already there. The choice now is whether it belongs there. But social change doesn't happen because people gradually get comfortable with it; we had popular black entertainers for decades before we got rid of Jim Crow. Another twenty years of "Will and Grace" in syndication isn't going to bring about legal gay marriage; ten years of court battles might. When, exactly, do you see the forces of this third great awakening waning in America? That wasn't a dig at religion - I'm fine with the nativity scenes - but deeply felt religious conviction tends to be comorbid with antipathy to gay marriage. Not exactly fertile soil for gradual social change.

I feel such a visceral reaction to this not because it's an amendment, but because it's dishonest. The marriage amendment isn't about gay marriage any more than Jim Crow was about promoting voter literacy. This amendment is about gay men and women and, at its heart, about the people who do not like them. If it's only about marriage, and not designed to preclude civil unions (I don't think this is true, but let's just assume), why are we bothering with it? Why take the time to build support for an amendment if it's JUST about the definition of a word? You still have all the entitlement problems with civil unions, you still have two straight men getting married for tax benefits and two gay women adopting a child (all, granted, changes in the social fabric about which we need to have our eyes wide open). You HAVE, however, taken the country's time and energy just to send a clear signal: this word belongs to us, and you can't have it.

I can think of some words I believe are used improperly. I vote in Maryland, and these words mean a lot to me; should I ask Senator Mikulski to float me an amendment?

David, I see your point, I just think that the founders were just as wary of the will of the people as they were of the whims of the King.

I sense that we're all getting weary of this, so I'll absolve you , David and Jane, of your need to respond; I think you've said what you need to say anyway, at least in response to my posts. I'm not trying to get the last word in or, and again I don't think you guys are warped or evil and I'm sorry if I implied it, but I'm signing off now because I resolved this afternoon to give up blogs for Lent. I'm serious. As you can clearly read, they're taking over my life.

With respect,

Contributor Brendan Greeley

The feelings of the majority are irrelevant. This is a human rights issue. Its also a constitutional issue-- the consittuion says no establishement of religion. So even if %90 of the country was christian, tough-- the government has no right (under the constotution, nor morally) to ban gay marriage.

AS to the courts doing an end-run--- what exactly is the pupose of the courts if not to do what the legislature does not have the moral fiber to do?

The feelings of the majority are irrelevant. This is a human rights issue. Its also a constitutional issue-- the consittuion says no establishement of religion. So even if %90 of the country was christian, tough-- the government has no right (under the constotution, nor morally) to ban gay marriage.

AS to the courts doing an end-run--- what exactly is the pupose of the courts if not to do what the legislature does not have the moral fiber to do?

The feelings of the majority are irrelevant. This is a human rights issue. Its also a constitutional issue-- the consittuion says no establishement of religion. So even if %90 of the country was christian, tough-- the government has no right (under the constotution, nor morally) to ban gay marriage.

AS to the courts doing an end-run--- what exactly is the pupose of the courts if not to do what the legislature does not have the moral fiber to do?

what exactly is the pupose of the courts if not to do what the legislature does not have the moral fiber to do?

So, Don, I guess you wouldn't mind if the courts showed a little "moral fiber" and declared homosexual sex a crime against nature, and thus eligible for the death penalty? That'll show those weak-kneed homo-lovers in the legislature!

You completely missed the point of the post and the debate, dude.

Don Galt: Its also a constitutional issue-- the consittuion says no establishement of religion.

Does this mean, Don, that you support the Blaine Amemdments (execrably upheld by the Supreme Court on Wednesday)? If so, you are an Anti-Catholic BIGOT. The Blaine Amendments (laws expressly prohibiting government funding on a religious basis) were a direct response to the fears polite society had over Catholic immigrants coming here. In fact, from Colorado on, states that wanted to join the Union were REQUIRED to have those Blaine Amendments. Before that, there was no previous codified law prohibiting religious funding.

A little OT, but an illustration to show that the Judiciary, at this time, is biased against Evangelical Christians, including Catholics like myself. Which is why we have to use that 4'X8' sheet of plywood known as the Amendment process to swat a relative mosquito such as Gavin Newsom's lawlessness.

A little OT, but an illustration to show that the Judiciary, at this time, is biased against Evangelical Christians, including Catholics like myself. Which is why we have to use that 4'X8' sheet of plywood known as the Amendment process to swat a relative mosquito such as Gavin Newsom's lawlessness.

Sorry if I came a little late to this debate but what exactly shows bias against Evangelical Christians again? The Blaine amendments to state constitutions? I'm sure there was a lot of bias against Catholics back in the old days but an amendment stating that the gov't cannot fund religion does not sound like discrimination to me.

In fact, I suspect such rules have served to decrease bigotry against Catholics and promote less hostility between religions. After all, if you are a Baptist you don't have to worry that Catholics moving into your town will shift the vote to funding Churches you disagree with. Without such rules then each new person to arrive in a community may find their religion may be the tipping point for upsetting the political balance.

... I'm sure there was a lot of bias against Catholics back in the old days but an amendment stating that the gov't cannot fund religion does not sound like discrimination to me.

In fact, I suspect such rules have served to decrease bigotry against Catholics and promote less hostility between religions. ...

Let's see now, Senators on the Judiciary Committee OPENLY questioned Bill Pryor's Anti-abortion beliefs solely on religious (Catholic) grounds. Wasn't there something in the original Constitution about religious tests being banned?

Joshua Davey was denied a Promise Scholarship ON THE SOLE BASIS of his wanting to pursue divinity studies AS ONE OF TWO MAJORS. That is outright religious discrimination as it is defined. The Esteemed Lord High Tribunal known as SCOTUS upheld Washington States' religious discrimination.

I realize you hate religion, especially Christian faith demoninations. After all, we can't have those dirty, hayseed-hick Christian right white trash have an unfavorable opinion on homosexuality and gay marriages based upon (OH MY GOD!!) THE BIBLE.

Am I passionate about this? You bet. I am sick of being told I have to be a doormat and accept being steerage (lower than 2nd class) just because I have religious beliefs. I can't wait for National Review, Jane Galt, or anyone else to make a "foolproof case" for me. I have to FIGHT LIKE A RABID DOG, regardless of what polite society types on this thread say.

Let's see now, Senators on the Judiciary Committee OPENLY questioned Bill Pryor's Anti-abortion beliefs solely on religious (Catholic) grounds. Wasn't there something in the original Constitution about religious tests being banned?

So what? The problem here is that Senators objected to Pryor's anti-abortion beliefs, not his Catholic ones. You may argue that this is a distinction without a difference but it is not. Suppose I stated my religious beliefs were that contracts are evil an I should do nothing to support them. Would the Senate not be able to question my fitness to sit on the court in light of the fact that the Constitution clearly provides for the right to contract? Here's a question, suppose Pryor was anti-abortion but also stated that he felt the Roe.v.Wade was correctly decided and only an amendment could permit the gov't to ban abortion. Would those who opposed him still be in opposition because he was Catholic?

I know you probably don't believe abortion is protected by the Constitution but that is another argument. Just because a person says 'my religion is anti-abortion' doesn't mean he suddenly becomes untouchable for those who feel abortion is protected by the Constitution.

Joshua Davey was denied a Promise Scholarship ON THE SOLE BASIS of his wanting to pursue divinity studies AS ONE OF TWO MAJORS. That is outright religious discrimination as it is defined. The Esteemed Lord High Tribunal known as SCOTUS upheld Washington States' religious discrimination.

First this isn't bias against 'Evangical Christians'. The state limited scholarships to secular study....its not like those studying to become Rabbis or Muslim clerics were permitted scholarships. Second, I'm undecided about this case. I see the point of view that the kid should have been able to use the scholarship for whatever it wants. On the other hand it does seem legitimate that the gov't has some say in how taxpayer money is spent. Suppose gov't, feeling there was a shortage of mathematicians, created a scholarship program for math majors. Does that mean it would have to open the coffers to those studying everything else?

"I realize you hate religion, especially Christian faith demoninations. After all, we can't have those dirty, hayseed-hick Christian right white trash have an unfavorable opinion on homosexuality and gay marriages based upon (OH MY GOD!!) THE BIBLE."

Ahhh yes, I see you have adopted the Al Sharpton style of debate. If anyone disagrees with you scream religious bigotry. I don't know if it will work as well as screaming race works for him but you're not fooling me.

Let's see now, Senators on the Judiciary Committee OPENLY questioned Bill Pryor's Anti-abortion beliefs solely on religious (Catholic) grounds. Wasn't there something in the original Constitution about religious tests being banned?

So what? The problem here is that Senators objected to Pryor's anti-abortion beliefs, not his Catholic ones. You may argue that this is a distinction without a difference but it is not. Suppose I stated my religious beliefs were that contracts are evil an I should do nothing to support them. Would the Senate not be able to question my fitness to sit on the court in light of the fact that the Constitution clearly provides for the right to contract? Here's a question, suppose Pryor was anti-abortion but also stated that he felt the Roe.v.Wade was correctly decided and only an amendment could permit the gov't to ban abortion. Would those who opposed him still be in opposition because he was Catholic?

I know you probably don't believe abortion is protected by the Constitution but that is another argument. Just because a person says 'my religion is anti-abortion' doesn't mean he suddenly becomes untouchable for those who feel abortion is protected by the Constitution.

Joshua Davey was denied a Promise Scholarship ON THE SOLE BASIS of his wanting to pursue divinity studies AS ONE OF TWO MAJORS. That is outright religious discrimination as it is defined. The Esteemed Lord High Tribunal known as SCOTUS upheld Washington States' religious discrimination.

First this isn't bias against 'Evangical Christians'. The state limited scholarships to secular study....its not like those studying to become Rabbis or Muslim clerics were permitted scholarships. Second, I'm undecided about this case. I see the point of view that the kid should have been able to use the scholarship for whatever it wants. On the other hand it does seem legitimate that the gov't has some say in how taxpayer money is spent. Suppose gov't, feeling there was a shortage of mathematicians, created a scholarship program for math majors. Does that mean it would have to open the coffers to those studying everything else?

"I realize you hate religion, especially Christian faith demoninations. After all, we can't have those dirty, hayseed-hick Christian right white trash have an unfavorable opinion on homosexuality and gay marriages based upon (OH MY GOD!!) THE BIBLE."

Ahhh yes, I see you have adopted the Al Sharpton style of debate. If anyone disagrees with you scream religious bigotry. I don't know if it will work as well as screaming race works for him but you're not fooling me.

Boonton - The problem with the way the Senators treated Pryor is that they would not believe him when he said he would follow Roe. They worried that he would let his faith prevent him from following the law. There was no evidence of this in his service as State Attorney General. Indeed, he prosecuted Judge Roy Moore for not removing the 10 commandments from the court house square after being ordered to do so by the federal court. (The prosecution was not popular in Pryor's home state and carried with it considerable political risk.) Given his record of doing what the law called for even if it conflicted with his on personal views, the Democrats still refused to confirm him. He couldn't be trusted to keep his word (or to honestly answer the question) because he was Catholic. Smacks of a religious test.

So you are telling me that if he had stated he thought Roe.v.Wade was good law the Senators still wouldn't have trusted him because he was Catholic? Isn't the truth more like they feared he would use his position to vote to overturn Roe.v.Wade (or undermine it)? Isn't this also why pro-life groups supported his nomination?

Since the days of Bork both the left and right have been trying to find a way to have the abortion argument by proxy...in other words argue about everything but abortion. So we have endless debates about whether someone committed perjury when they said they never thought about Roe.v.Wade or some such silliness. Pryor is just a continuation of that. This time the right tried to claim if a person was pro-life out of religious conviction the issue couldn't be raised in their confirmation least you are imposing a 'religious test'.

I'll ask again, support the nominee was Catholic who stated Roe.v.Wade was good law? Suppose the nominee was Ted Kennedy! Would the Senators who opposed Pryor have opposed him? If not your claim that Pryor was the victim of Catholic bashing is out the window.

Boonton - I've never said that Pryor is the victim of anti-Catholic prejudice. I don't think that he was; he would have received the same treatment had he been a Baptist The Democrats don't trust him because they don't understand anyone who professes a genuine faith in god. Kennedy is a social Catholic; his affiliation seems to have had little affect on his public or private behavior.

As for Pryor's position on Roe, how does it differ from the majority of constitutional scholars in this country? Even if they agree with the public policy emodied in it, most agree that it was poorly decided. Pryor explicitly said he would follow it and make no attempt to narrow it's scope. Despite his personal belief that Roe is poor public policy and was poorly decided, Pryor pledged to follow the law. Other nominees gave nearly identical answers and were approved by the democrats. Of course, those nominees had not been so public in their discussion of faith, so they could be trusted.

Kennedy is a social Catholic; his affiliation seems to have had little affect on his public or private behavior.

This is a bit presumptous. We know Kennedy was a partier back in the early 70's but, hey, what was Bush doing then? Drinking hard and possibly snorting coke....it was only good luck that the worst that happened to him was a DUI that got 'fixed' rather than a car accident that killed someone. While he has been mocked for being overweight and possibly still a drinker we really don't know much of anything about his personal life.

You dodged my question, what if he had argued that Roe.v.Wade was good law? Somehow I don't think there would have been anywhere near as many objections. That means that the argument was not about religious bias but about protecting (or overturning from the pro-life POV) Roe.v.Wade.

Your arguments about the merits of Roe.v.Wade are irrelevant to this discussion. You opened this thread by arguing:

little OT, but an illustration to show that the Judiciary, at this time, is biased against Evangelical Christians, including Catholics like myself.

And then:

Let's see now, Senators on the Judiciary Committee OPENLY questioned Bill Pryor's Anti-abortion beliefs solely on religious (Catholic) grounds. Wasn't there something in the original Constitution about religious tests being banned?

You certainly seem to be asserting that Pryor was subjected to an anti-Catholic religious test. Now you take a step back and say it wasn't necessarily anti-Catholic but is possibly anti-evangelical Christian. But I'll toss it back at you and present you with a hypothetical of an Evangelical Christian who hates abortion but feels Roe.v.Wade is good law and only a Constitutional amendment could permit the gov't to ban abortion. If this person wouldn't have raised the objections Pryor did then your religious bias argument finally shatters.

We both know the reality. Pro-lifers supported Pryor because they suspected he was more than likely to vote to narrow or overturn Roe.v.Wade if he had the chance. Pro-choicers opposed him for that reason.

Boonton - A minor point, but you are combining posts (and positions) from more than one person. As to your hypothetical as to what would have happened had Pryor said he thought Roe was good law and that only a constitutional amendment could change that result, I suspect that Pryor would not have been approved. Why? Because, if the democrats did not believe his oath to follow Roe there is no reason to believe they would have believed his declaration that Roe is good law.

There are many problems with your question: First, judicial nominees should NOT answer such a question. (I forget where, but there are published ethical standards for judges and judicial nominees. Answering questions about how they might rule on subjects that might soon come before the court is a no no.) So, Pryor could not do as you suggest -- no nominee could without violating the ethical rules -- and the democrats' demanding that he do so was clearly out of bounds. Second, Pryor had been nominated for a seat on a lower court. Only the Supreme Court can overturn Roe. So what more would Pryor's profession to believe Roe was good law gain? He had sworn that he would follow Roe as binding precedent. If he kept his word, there would be nothing he could do on the lower court that would put Roe in danger. (I know that the question is IF he would do as he said he would. But the ONLY reason to doubt his word is based on his religious faith -- which is central to the question of whether he was subject to religious bias.) Third, other nominees did not profess to believe that Roe was properly decided, only that they would follow it, and they were approved by the Senate. Other than Pryor's religious faith, there is nothing to distinguish him from other candidates who were approved. And, fourth, a large segment of the legal community does not consider Roe to be properly decided (even though a majority support the public policy result). Declaring that Roe is good law should all but disqualify a nominee as incompetent.

At bottom, Pryor's professional record showed that he would follow the law even if he disagreed with the law. Other than his religious faith, his opponents offered no reason for doubting his word on this point (and had sustained others who had took the same position as Pryor) and religious prejudice is the simplest answer to why the democrats did not sustain his nomination. There are other explanations: Trying to score political points with their base, trying to obstruct the President's agenda, etc.

One last thing: You are correct. Without the ability to see into Senator Kennedy's heart, we do not know whether he's more than a social Catholic. However, if you are going to call this point to my attention in your first paragraph, it's a little rich for you to then tell us in your last paragraph that we all "know" what motivated Pryor's supporters.

...Suppose the nominee was Ted Kennedy! Would the Senators who opposed Pryor have opposed him? If not your claim that Pryor was the victim of Catholic bashing is out the window....

This is mainly because Ted Kennedy is a self-hating Catholic who sold his soul for government power and is now a slave to activists who feed off government's power (economic or otherwise). The Catholic bashing is still relevant, as Ted Kennedy is a full government actor. Same thing with Daschle, Tom and Leahy, Patrick.

All three have made it apparent they will sell their Catholic brethren down the river in order to maintain political power.

Boonton,

> Sorry if I came a little late to this debate
> but what exactly shows bias against Evangelical
> Christians again? The Blaine amendments to
> state constitutions?

Yes, the current use of them to single out religion-related study for special disfavor among state-awarded scholarships. It's not religion being funded that was at question in Davey, but rather state grants to further the education of state residents.

> After all, if you are a Baptist you don't have
> to worry that Catholics moving into your town
> will shift the vote to funding Churches you
> disagree with.

Not at all, because nobody thinks the states should be funding any churches. (Well, not currently; the founders' generation felt quite differently about this point.) That's not the issue being discussed here.

One last thing: You are correct. Without the ability to see into Senator Kennedy's heart, we do not know whether he's more than a social Catholic. However, if you are going to call this point to my attention in your first paragraph, it's a little rich for you to then tell us in your last paragraph that we all "know" what motivated Pryor's supporters.

David, you began your rant telling us that the judical system was biased against Evangicals and Catholics. You used Pryor as an example. My point here is not to debate the merits of Roe.v.Wade or the mechanics of how disputes over judicial nominations should be handled (such as should they be asked how they would rule on Roe.v.Wade or just asked what their feelings are on the matter).

On the technicalities: Since he was being nominated for a position that could be used as a launching pad for a S.C. nomination his views on the law do matter...even if he didn't yet have the power to decide to overturn the decisions. My point about Senator Kennedy is to illustrate your selective outrage. Kennedy is a Catholic. We have no idea if he is a 'social Catholic', 'fallen Catholic', 'doubtful Catholic' or whatever. Likewise we have no idea what type of Catholic Pryor is. For all we know he may make a show of being devote to win the support of right wing religious groups. But we both know that the Senators who opposed Pryor would have supported Kennedy should Bush have nominated him in a fit of insanity. That blows your Catholic bashing theory out of the water.

I think my comparison to Al Sharpton is rather apt. You seem a little too quick to cry discrimination if you don't get your way (I noticed how quickly you jumped on me and called me someone who 'hates religion'). Consider this hypothetical dialoge and you tell me if maybe you see something of a reflection:

Sharpton: Bush Sr. was a racist President.

Question: How could he be racist? He nominated blacks to high positions like Clarence Thomas, Colin Powell etc?

Sharpton: Ohhh well they aren't really authentic blacks.

Question: Why?

Sharpton: Because they don't agree with me.

This is mainly because Ted Kennedy is a self-hating Catholic who sold his soul for government power and is now a slave to activists who feed off government's power (economic or otherwise). The Catholic bashing is still relevant, as Ted Kennedy is a full government actor. Same thing with Daschle, Tom and Leahy, Patrick.

You: There's Catholic bashing going on, look how they objected to Pryor!

Me: Well it seems they thought Pryor would undermine Roe.v.Wade...not that he was Cathollic. I'm sure if Ted Kennedy had been the nominee they wouldn't have objected.

You: Ohhh kennedy isn't really Catholic!

Me: Why?

You: Well he doens't agree with my positions!

Boonton,

I'm sure Mr. Walser would greatly appreciate it if you did not conflate his statements with mine. I'm the one concerned about Anti-Catholic Bigotry; focus on me.

...But we both know that the Senators who opposed Pryor would have supported Kennedy should Bush have nominated him in a fit of insanity...

You know as well as I do that those same self-hating Catholic senators would vote for Ted Kennedy because he is one of their own. That rich Boys and Girls Club known as the US Senate always looks out after their own. Well, except for Tailgunner Joe, that is.

Your hypothetical has nothing to do with the basic issue that Anti-Religious and Anti-Catholic BIGOTRY is currently practiced by the Supreme Court. This will be further demonstrated sometime in late June when that Esteemed Lord High Tribunal declares that the 9th Circus was right in declaring the Pledge of Allegiance unconstitutional.

Brad,

Thank you for calling my attention to confusing two different posters for a single author. I do apologize to Mr. Walser for confusing you for him. No doubt no one deserves that.

Your post is hardly worth addressing. You seem to be of the opinion that anything you disagree with is anti-Catholicism. The fact that you use the Pledge case as the anchor of your latest post demonstrates your poor grasp of the issue nicely. Leaving aside the fact that most expect the 9th's ban on the Pledge to not be upheld (in fact, I believe it may have already been rejected), the Pledge debate has nothing to do with Catholicism. But of course you disagree hence its anti-Catholicism bigotry.

David,

I'm always interested in what you have to say.

Are there rational reasons to oppose gay marriage? I don't think the first two you mention are rational. The burden on employers is likely to be small. (Not sure what you mean about mortality. There was some junk about life expectancies spread around by Bill "Slots" Bennett, but it's baloney) And so are the revenue effects. It is with some trepidation that I disagree with you on question of taxes, but might not the revenue effect be positive, in fact? After all, conservatives have been complaining for years about the marriage penalty. (Yes, I know there's a "marriage bonus" for some couples also, but that doesn't make for a good sound bite, so it doesn't count). In any case, it can't possibly be right to make this decision based on revenue effects.

I gather the main reason you oppose gay marriage is fear of unintended consequences. But every change has unintended and unforeseen consequences. The status quo even has "unintended consequences." We cannot see the future. My view is that foreseeable consequences are so positive that to oppose gay marriage on the grounds of vague fears is (I started to write "irrational," sorry) excessively cautious.

Bernard - Let me respond to the mortality question first. The widow or widower of a social security recipient receives a survivor benefit. (If the widow or widower is able to receive social security based on his or her own employment record, he or she would receive the larger of their own benefit or the survivor benefit.) Similar rules apply to private pensions (except the survivor benefit is not dependent on the survivor's own work history). The point being, with gay marriages there will now be more surviving spouses than had been expected. Both public and private pensions will incur higher expenses. Actuarial assumptions will need to be changed and funding will need to be increased (or benefits reduced) to fund these higher expenses.

As a group (according to the stats I've seen) homosexuals have a higher mortality and medical expense rates than do heterosexuals. This is true even after adjusting for AIDS. (This may be because there are more male homosexuals than female, I don't recall if the stats were broken out by gender.) The costs of providing family medical coverage (and spousal life insurance coverage) are based on the assumption that there will be a man and a women -- an assumption that would not be valid for gay marriages. Again, this will lead to higher costs in providing these kinds of benefits.

How large will these costs be? I don't know. I think it's only fair that someone crunch the numbers before we write a check that society may not be able to cash. Simply postulating that the cost is likely to be small doesn't cut it from my perspective. Social Security is already under considerable pressure. Many private pension funds are, after three years of a down market and historically low interest rates, hardly in a position to take on a larger future obligation. These costs could be very large and it would be irrational to simply pretend they do not exist.

This post just scratched the surface of the practical problems gay marriage might entail. These problems may well be something society is willing to bear the cost of solving. If so, I think it's the political process that is best equipped to determine how the costs (if any) should be allocated. As I read the current public opinion, I think that there are many who are indifferent to what gay's do in private and on that basis would be willing to support gay marriage. On the other hand, I doubt there are more than a few who would support gay marriage if it meant higher costs for their own families.

Bernard - Now let me address the question of unintended consequences. I hesitate to express fully these concerns because I know they are based on information that may not be fully up to date or correct. At a minimum, the concerns may represent an error of misunderstanding that advocates of gay marriage will need to overcome before it will be widely accepted by straight America. In a nutshell, the concern is that gay marriage will lead to a larger percentage of our society being homosexual.

Whether this concern is realistic or not depends on what causes one person to be gay and another to be straight. When I was young (graduated from high school in 1977), it was commonly understood that the "cause" related to an individual's unique experiences in growing up. Now, common wisdom says that we are born with an unchangeable sexual orientation. Like most nature v. nurture questions, I suspect the answer is a combination of the two. That is, I believe sexual orientation is at least partly voluntary. (I also understand that even suggesting that about sexual orientation is anything but P.C. and many readers of this post will label me a bigot for merely expressing the thought. I am but a product of my youth. The gay community spent most of the 70's and 80's saying homosexuality was an alternative lifestyle. Just another choice we shouldn't criticize. I believed them, so sue me.)

If partly voluntary, isn't gay marriage likely to lead to more of society choosing this "alternative lifestyle"? What would the result be of having a larger percentage of society be homosexual? This, by the way, is how we fear that gay marriage is a threat to traditional marriage. Not that many existing marriages will suddenly break up as spouses leave each other to enter into same sex marriages, but that more of us will choose to be homosexual and fewer will be left for traditional marriage.

David,

Thanks for clarifying your views.

Jane Galt sez:

"I think a federal amendment on the matter is ridiculous"

I'm pushing the idea of an amendment that says:

"The definition and regulation of marriage is a State matter, in which no branch of the Federal government may intrude."

This will preclude judicial fiat, and guarantee that this fight will take place in the political arena where it belongs.

As a group (according to the stats I've seen) homosexuals have a higher mortality and medical expense rates than do heterosexuals. This is true even after adjusting for AIDS. (This may be because there are more male homosexuals than female, I don't recall if the stats were broken out by gender.) The costs of providing family medical coverage (and spousal life insurance coverage) are based on the assumption that there will be a man and a women -- an assumption that would not be valid for gay marriages. Again, this will lead to higher costs in providing these kinds of benefits.

How large will these costs be? I don't know. I think it's only fair that someone crunch the numbers before we write a check that society may not be able to cash.

First the sword cuts both ways. If gays have a lower lifespan then its likely that *both* partners will die before they could collect SSI/Medicare.

Second, the right assures us that Kinsley was way off base when he stated that 10% of the population is gay. Most agree that figure (1 in 10) is wildly inaccurate. So what are we talking about? 1%-5% of the population being gay with it probably being closer to 1%. Of course, not all gays would get married so the actual impact on society would be even smaller.

Third, what happens now? By this I mean obviously gays have health expenses today even though they are unmarried. Somehow these bills get paid just like they would get paid if gays were married. Unless you want to argue that letting gays get married would make they physically sicker, there should be no net increase in overall health spending. There's a good argument that marriage would decrease health problems with gays. Not only would lower promiscuity improve health in the gay community but there have been studies that show being married helps accross the board (lower stress, less depression etc.)

Fourth, the case of a widowed spouse receiving her husband's (or wifes) SSI benefits really applies to the case of a spouse with little or no time in the labor force (i.e. a homemaker). This is getting rare in the straight world but much more rare in the gay world. Also the 'homemaker family' model implies that one person is the breadwinner who is supported by the homemaker. The breadwinner, presumably, will make more because the homemaker will support him by keeping house, raising kids (if any), encouraging him in his career etc. If the model works then the homemaker is indirectly contributing to GDP, hence society is getting something back for the SSI funds it would have to distribute should the breadwinner die early. To a degree this happens even if the breadwinner doesn't make more money. Working full time costs money, over a lifetime you accumulate thousands of dollars spent on eating out, having personal services done by someone other than you (maid, childcare etc.). A two-career couple probably supports 0.5 or 0.75 of a low income worker thru their random spending. This, of course, will eventually cause someone else to get SSI and since SSI is progressive....welll the math cuts both ways.

Finally, I would be very hesistant in denying marriage rights based on estimates of how it may impact the Federal budget 25 years from now. If gays should have a right to get married they should. If SSI/Medicare's benefit system can't accomodate that then we should fix it. Would you tell blacks that they could no longer get married because we just crunched the numbers and SSI 'comes out better' if they didn't?

Boonton - Please understand the context in which I my comments were made in: The MA SJC found that there were no rational arguments against same sex marriages and that therefore any ban on such marriages were unconstitutional. (An interesting standard, that, do you suppose the tax laws also need to be rational?) So, without much thought or effort, I came up with some arguments that I thought might serve as examples of rational reasons why society might choose not to confer the benefits of marriage on same sex couples.

As to your specific counters to the increased costs gay marriage might impose on social security, insurers, and others providing spousal benefits, I disagree. Yes, if gays have higher mortality than others in the population, average social security benefits paid to gays would be lower than that paid to straights. But that "savings" is already built into the system. Gays are already collecting social security (as singles), the only difference gay marriage would produce would be that now some gays would receive a higher benefit based on their status as a surviving spouse. Any spousal benefits paid would be a net additional cost. As you point out, gays are a very small percentage of the population, and few might marry and fewer still might qualify for a higher benefit as a spouse than based on their own work history, but I don't think it is irrational to suggest someone estimate these costs before the courts mandate this additional benefit.

You are also correct in pointing out that someone is already paying for gays' retirement and medical expenses such that there may be very little change in the total amount of such expenses paid by society as a whole. However, that was never my point. The payor of these expenses will be shifted from one segment of society to another. We might all ultimately agree that such a shift produces a fairer result. This presumes we have any idea how much of the burden will be shifted and to whom, which we don't. Again, I don't think it is irrational for us to ask that the details of the burden shifting resulting from same sex marriages be fleshed out before going forward. My intuition is that most of the country is ready to accept gay relationships, they just don't want to be asked to subsidize them. If the burden of retirement and medical costs are shifted away from gays, the rest of society is being asked to subsidize gay marriage.

Finally, I don't accept your civil rights formulation that if gays have a right to be married, we should allow them to marry and damn the costs. My view is that society long ago chose to encourage marriage because of the societal benefits associated with marriage. Thus, married couples have been given special economic and other advantages only available to them. Gay couples want admittance to this favored class. I think it only fair that they convincingly demonstrate that their marriages will, on the whole, provide similar societal benefits (and that the special economic and other advantages of marriage are necessary in order to secure the societal benefits) before they are admitted to the favored class . They may well be able to do so, in which case it would be irrational for society to not allow gays to marry. It's not irrational to insist gays make their case as to why they are deserving of the special economic and other advantages they seek before granting them.

Boonton - Please understand the context in which I my comments were made in: The MA SJC found that there were no rational arguments against same sex marriages and that therefore any ban on such marriages were unconstitutional. (An interesting standard, that, do you suppose the tax laws also need to be rational?) So, without much thought or effort, I came up with some arguments that I thought might serve as examples of rational reasons why society might choose not to confer the benefits of marriage on same sex couples.

Rational here is in reference to Equal Protection. In short, the 14th guarantees everyone 'equal protection' under the laws. What does that mean? Well basically every law treats people unequally (laws against murder treat murderers differently than non-murderers for example). Hence the doctrine that has developed is roughly the state make such distinctions if they are rational. Some distinctions such as race are subjected to strict scrutiny, gender is subjected to scrutiny (but not as much as race) and some distinctions are subjected to only minor scrutiny.

Again, I don't think it is irrational for us to ask that the details of the burden shifting resulting from same sex marriages be fleshed out before going forward. My intuition is that most of the country is ready to accept gay relationships, they just don't want to be asked to subsidize them.

I agree it is rational to inquire how much gay marriage would cost just as it is rational to inquire how much regular marriage is costing us as well as Bush's proposed 'incentives' to 'strengthen marriage'. There is a powerful argument about fairness here. Society has decided if one party plays the role of homemaker & the other the part of breadwinner, the homemaker should not be punished because she (or he) gave up a formal career to support a breadwinner. In light of changing society we may want to rethink this arrangement but the question should exist independent of whether or not gay marriage is legalized.

Finally, I don't accept your civil rights formulation that if gays have a right to be married, we should allow them to marry and damn the costs. My view is that society long ago chose to encourage marriage because of the societal benefits associated with marriage.

I'm not sure I agree society 'decided' to adopt marriage. Coupling appears to pre-date society as we know it. There are rational reasons for this, for example a family unit of two adults allows work to be divided and provides back up in case one person gets sick or hurt. There are also benefits that accrue to society in general such as less need for a safety net, better health due to less promiscuity etc.

I guess the question should be why would these benefits not also apply to gay couples? If marriage is an institution with positive society-wide returns for straight couples then why wouldn't it be for gay couples? The only real reason you have is that since gays have shorter lifespans there may be some increased costs of gays collecting their spouses SSI checks. But there are other demographic groups with shorter lifespans (African American males is one notable group)...the fact that they may end up costing SSI more does not justify removing their ability to marry.

Jane Galt sez:

"I think a federal amendment on the matter is ridiculous"

I'm pushing the idea of an amendment that says:

"The definition and regulation of marriage is a State matter, in which no branch of the Federal government may intrude."

This will preclude judicial fiat, and guarantee that this fight will take place in the political arena where it belongs.

Judicial fiat is not the issue here. State judges are bound by their State Constitutions. MA appears to have gay marriage not because of judicial fiat but because their elected representatives could not agree on a state constitutional amendment banning it.

In the Federal Courts the only easy route for gay marriage to become judicial fiat would be via the Equal Protection clause of the 14th. So far there is little evidence that this will happen & even if it did it is very hard to believe the current Supreme Court would go along with it.

My prediction is that this fight will start in the states & if gay marriage doesn't produce diaster it will eventually be adopted nation wide. Like the bans on interracial marriage, we don't want to see a US where 40 states have gay marriage and 10 continue to ban it forever. On the other hand if gay marriage does produce unintended problems it will most likely remain an oddity in one or two states but never get beyond there.

Judicial fiat is not the issue here. State judges are bound by their State Constitutions. MA appears to have gay marriage not because of judicial fiat but because their elected representatives could not agree on a state constitutional amendment banning it.

In the Federal Courts the only easy route for gay marriage to become judicial fiat would be via the Equal Protection clause of the 14th. So far there is little evidence that this will happen & even if it did it is very hard to believe the current Supreme Court would go along with it.

My prediction is that this fight will start in the states & if gay marriage doesn't produce diaster it will eventually be adopted nation wide. Like the bans on interracial marriage, we don't want to see a US where 40 states have gay marriage and 10 continue to ban it forever. On the other hand if gay marriage does produce unintended problems it will most likely remain an oddity in one or two states but never get beyond there.

Boonton - I hope you are right that this will end up being something left up to each individual state, but I don't see how that can be the case. The full faith and credit clause of the US Constitution seems to require each state to honor the lawful marriages performed in the other states. Otherwise, a gay person could get a divorce simply by crossing a state line. A married gay couple in MA could not purchase a vacation home in "joint tenancy with rights of survivorship" (which is reserved for married couples, but you can get the same result via different methods) in another state.

I did not follow your judicial fiat argument. Yes, state courts are bound by the state constitution, but who's to stop them from exceeding their authority? If the MA SJC determined that the MA Constitution required people be given 25% discounts on their birthdays, who could tell it that it was wrong? Yes, the Constitution could be amended, but in MA the amendment process takes, by design, years. The earliest the constitution could be amended is 2006 (I think). So, if the legislature did refer an amendment to the people and the people were to amend it, gays could still be legally married for 2 or 3 years before the amendment would take effect. How would that not be a result of judicial fiat?

Not that judicial fiat is in all cases bad. It is, after all, the way courts legitimately conduct business. The real question is who gets to make this public policy decision. The courts or the people. Most of us have a hard time understanding how a document can be held to say one thing for hundreds of years and then be held to say quite another thing the next day. In such a case, to say that the clear reading of the document mandates the new result appears, on its face, to be laughable. What, no one had read the thing before?

This is why Lawrence (sp?) was such a bad decision (right on policy, wrong on the law). The dissent by Scalia pointed out that the majority's reasoning could not be restricted to sodomy and that it would appear to allow lots of other things that were then prohibited (such as gay marriage). The majority opinion tried to limit its conclusion to just sodomy, but the MA SJC used Lawrence to require gay marriage under it's state's constitution. One court wanted to move the law an inch, the following court took that inch and moved the law a mile.

Boonton - I hope you are right that this will end up being something left up to each individual state, but I don't see how that can be the case. The full faith and credit clause of the US Constitution seems to require each state to honor the lawful marriages performed in the other states. Otherwise, a gay person could get a divorce simply by crossing a state line.

The Full Faith & Credit clause has two limites:

First: States are not usually required to recognize marriages that violate their public policy. This is why the bans southern states used to have on interracial marriage were not dissolved by the Full Faith & Credit clause. (Ironically divorces are 'judicial rulings' which would fall under the clause, so long ago Alabama wasn't required to recognize a black-white marriage done in NY but did have to respect a divorce). Slate has a good FAQ section on that.

Second: The Defense of Marriage Act stands between using the clause on the various states. The Constitution does give Congress some power to regulate the implementation of the clause so getting past DOMA will not be an easy challenge for advocates of gay marriage via Congressional fiat.

MA's Constitution has not remained the same for hundreds of years. But on top of that, a state could deal with a wild Supreme Court by amendment, impeaching their judges etc. There is nothing prohibiting MA from banning gay marriage and declaring all marriages performed 2004-2006 retroactively void, for example. It is the duty of the states to ensure that their Constitution allows for a proper balance between judicial and legislative power.

While Lawrence was mentioned in MA's opinion its not really the important basis of their ruling. They basically held that MA's Constitution prohibited discrimination based on gender. Lawrence dealt with a law that banned a particular sex act (sodomy) for only a particular group (unmarried gays, the law specifically allowed for married couples to partake in oral & anal sex). Scalia's Lawrence dissent was a tad hysterical and the ruling in MA doesn't vindicate him.

Comments are Closed.