August 4, 2010

"Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license."

"Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional."

330 comments:

1 – 200 of 330   Newer›   Newest»
DKWalser said...

That settles it then. The fact many can articulate a rational basis for reserving marriage for heterosexual couples shouldn't prevent a judge from finding, as a matter of fact, that there is no rational basis.

Quayle said...

Here is my summary of the crux of the opinion.

The public is not qualified to determine whether something is "wrong."

The public is not qualified to determine what foundational norms it wishes to have.

Morality as determined by the majority of the citizens is insufficient grounds for public law.

AllenS said...

We need more Mosques.

Peter Friedman said...

DK - and what rational basis do you articulate?

David said...

So for the first 200+ years of the country's history, marriage laws had no rational basis?

I'm in favor of gay marriage, but this is NOT the way to do it.

I assume the judge is basing his ruling on the federal constitution.

Surely no judge will ever say that a constitutional amendment to a state constitution is unconstitutional?

Of course who would have suspected this ruling either, until judges decided that deciding political questions without personal accountability was a lot of fun.

Blue Collar Todd said...

I guess us "irrational" folk here in California need to be re-educated like that Christian counseling student so we accept homosexuality? There must not be any rational basis for opposing polygamy, polyamory, or the marriage of relatives if we follow this judge's views.

rhhardin said...

He's incurious what a marriage is.

It can't matter, he thinks.

TRO said...

"We need more Mosques."

Hell yes, because only then will homosexual couples finally be free to do as they wish.

As to the judge's ruling it can be summed up as, "Silly people, you don't really believe you are in charge of your lives, do you?"

A.W. said...

so basically, this judge believes that gay relationships are so equal that it is wrong for a state to suggest that, gee, all things being equal you should be straight.

Stigmatization analysis has no place in rational basis review.

Ann Althouse said...

In determining rational basis, the court has to exclude interests that are deemed not legitimate for government to rely on. Lawrence v. Texas found it illegitimate to use the idea that homosexual behavior is immoral.

"Morality as determined by the majority of the citizens is insufficient grounds for public law."

That's what Lawrence said.

lyssalovelyredhead said...

My thoughts are here in more detail, but I think this is a bad thing for gay marriage supporters and those who want limited government.

1) If this is upheld by SCOTUS, we risk a constitutional amendment. There was a lot of support for it a very short time ago, and Americans still don't support gay marriage by a majority.

2)If this is overturned by SCOTUS, it will be a huge setback, and will likely reinvigorate opponents, causing loss of support where gay marriage has been allowed.

3) A federal case, either way, will mean a culture war. People paying attention to gay marriage are not paying attention to the out of control government. We are at an important point in government control here, and a federal case will squander the attention that the government is now getting.

I support gay marriage, but I don't like this.

- Lyssa

Tidy Righty said...

This came from a fudgepacker judge and is why fudgepacker Kagen should not be confirmed for the Supreme Court!

RuyDiaz said...

You've got to be kidding me.

Even if you go through the proposition channel to amend your state constitution, a Judge will overturn you all the same?

You've got to be kidding me.

mesquito said...

“The evidence shows that the
movement of marriage away from a gendered institution and toward an
institution free from state-mandated gender roles reflects an
evolution in the understanding of gender rather than a change in
marriage.”

You heard the man, people. You're evidently evolving, but not nearly fast enough.

Dead Julius said...

This court must be smacked back to its rightful place without delay. I mean... a court deciding on constitutional issues? How quaint! It's like being back in the 1800s.

The fact is that this ought to have been an Executive decision. If Obama says that Prop 8 is constitutional, it is. If he says no, then it ain't. Don't need no fancy-pants court.

Maybe the Supreme Court will be more reasonable. And by "reasonable", I mean "deferential".

After all, America is ruined if our elected ruler doesn't get to decide these types of issues himself, right?

Paul Zrimsek said...

45. Proponents’ campaign for Proposition 8 assumed voters
understood the existence of homosexuals as individuals
distinct from heterosexuals.


Gosh.

David said...

Lot's of big questions, but I'll focus on a little question:

Is there any doubt that if President Obama had his way, this decision would either (1) not have come out until after the midterms or (2) have come out the other way?

The question of gay marriage now having been nationalized and federalized, how does this not result in even higher Republican turnout and votes?

On the other hand, does this now put immense pressure on sitting Republican senators to oppose Kagan?

Synova said...

Do laws have to have a rational basis? It's a false standard. Rationality is more or less irrelevant to what people decide should be a law. It's annoying, but it doesn't invalidate the laws that are passed. Right and wrong are irrelevant as well, really.

From the sounds of it, the argument and judgment makes up for in length what it lacks in actual merit.

A person will need to decide if getting the result they desire is worth bad court rulings.

Also, likely Althouse expects us to notice this... apparently the judge's unique perspective is informing his jurisprudence.

New "Hussein" Ham said...

"We need more Mosques."

Once the mosques are all put in place, don't they behead all the gay judges?

Shouldn't be too much longer now.

Dust Bunny Queen said...

"Morality as determined by the majority of the citizens is insufficient grounds for public law."


We are so completely screwed. Why should anyone anywhere obey any laws if the public is not to be considered as participants in approving or shaping the laws and the culture that we live in.


When we have an unelected autocracy of elites who override the will of the people we are not free and we are not allowed to have any input in how we structure our lives.

The laws are not reflective of society, of its morals and rules and are an artificial construct that is being imposed upon us by people who are truly alien to the culture of the average person.

This ruling will of course be appealed and hopefully heard by the supreme court. Not that THAT would do any good.

As more and more it becomes obvious that the government cares nothing about the people, other than as sources of money to be bleed dry to fund socialistic pipe dreams. And as it becomes painfully obvious that the court system is corrupt and not looking to uphold laws but rather to make laws for social engineering.....

The feces is going to hit the oscillating mechanism.

former law student said...

But gay men and lesbians have always been able to marry in California. They make cute couples, in fact.

Paul Zrimsek said...

18. Protect Marriage is a “broad coalition” of individuals and
organizations, including the Church of Jesus Christ of
Latter-Day Saints (the “LDS Church”), the California Catholic
Conference, a large number of evangelical churches, and the Communist Party.


OK, so I edited it a bit.

Eric Muller said...

David says: "Surely no judge will ever say that a constitutional amendment to a state constitution is unconstitutional?"

Why is that so hard to believe? If my state of North Carolina amended its Constitution to provide for a free public education for everyone except Jews, do you really think this amendment to the state constitution would not be a violation of the federal Constitution?

Ann says: "That's what Lawrence said."

Lawrence didn't say that morality is insufficient ground for any public law. It said that moral condemnation is an insufficient ground for the criminal sanction. We might infer that Kennedy intended the broader application to all public law, but he didn't actually say that in Lawrence.

(In fact, it is precisely the case of gay marriage that might give Kennedy the opportunity to draw this distinction.)

Quayle said...


"Morality as determined by the majority of the citizens is insufficient grounds for public law."

That's what Lawrence said.


Yes, and predicated upon an implied supposition that there exists some wholly independent rational against which the public's opinion might be tested.

Pray tell, where is this fountain of rationality that we all might drink equally and come to know these deep truths that our self-appointed kings and rulers tell us they know?

New "Hussein" Ham said...

"Do laws have to have a rational basis? It's a false standard."

The better question is: Do judges have to be rational?

Judges don't need anything other than an argument to rule however they want - and this judge did just that.

It doesn't have to be a particularly good argument. Doesn't even have to be plausible.

A judge merely has to articulate his argument and then rule however he wants.

But we have appellate courts to stop insane out-of-control judges from ruling on cases they should have recused themselves from.

We should arrest and try this judge for malfeasance ... because he has a clear conflict of interest ... seeing as how he is gay. That he refused to recuse himself is obscene and brings disrepute on all judges and the bar.

This judge makes all judges look crooked.

XWL said...

Not to be slippery slope guy, but seems like the manner in which this particular judge deemed same sex marriages as being equally protected to opposite sex marriages applies just as easily to consentually incestuous relationships between adults and polyamorous pairings in any combination folks wish to undertake.

John Stodder said...

So for the first 200+ years of the country's history, marriage laws had no rational basis?

Till a few years ago, nobody cared. The discrimination against gays was considered some kind of natural law position that rarely needed to be articulated in order to be enforced.

But now that gay people want to get married, we're finding that there's nothing in the Constitution on which a prohibition can be based that can overcome the assertion of equal protection under the law.

If straight people can get married, then you have to let gay people do it too, in a legal sense.

If you run a church and don't want to marry gay people, you don't have to. But the state doesn't have the right to discriminate that a church does.

That the law would eventually come to this conclusion was inevitable from the first moment I heard the words "gay marriage" mentioned. It's in the same basket with job discrimination, housing discrimination, etc. If equal treatment under the law means anything, it means you can't reserve a legal institution such as marriage for one class of people and deprive it to another.

The only recourse available to foes of gay marriage is a Constitutional amendment. There is exactly zero chance of that happening.

As the Mayor of San Francisco famously said, "Get used to it." He might have been kind of snarky when he said it, but it's really the only thing to do. It's time for religious leaders to take the lead in helping their freaked-out parishioners cope with the new reality. Gay marriage will not hurt them or undermine their families.

victoria said...

Great day for marriage equality!!!!


Vicki

Sixty Grit said...
This comment has been removed by the author.
YoungHegelian said...

I second Lyssa's thoughts that this is a high-risk way for the pro-gay marriage movement to try and legitimate SSM.

I don't particularly support SSM, but I could learn to live with it without losing too much sleep. But as an outsider looking in, this strikes me as a high-risk game of chicken.

By the way, Tidy, lesbians only pack fudge in the imaginations of straight porn directors. And, if someone wants to convince me otherwise, I'll require pictorial evidence.

DKWalser said...

DK - and what rational basis do you articulate?

I was afraid someone would ask that question. Not because I don't have an answer, but because I don't wish to turn this into a debate on the merits of same sex marriage. Rather, I'd much prefer that the focus remain on the legal issue: is there a rational basis for the state to prefer heterosexual relationships over homosexual relationships.

With that out of the way, here's one rational basis: As a general rule, children benefit from being raised in a family that has both male and female role models. Therefore, it's rational for society to try and promote those types of relationships. Society has long sought to promote and stabilize traditional marriage by providing tax and other benefits to married couples and by imposing financial and other obligations upon the dissolution of such marriages. By making these benefits and protections available outside of traditional marriage, the incentive affects of the package of benefits and protections will be diluted. Therefore, it's rational to believe that recognizing same sex marriage (and providing it with the same basket of benefits and protections) will further erode the support for traditional marriage. This position is further supported by academic studies that appear to show a link between the recognition of the recognition of same sex marriages in Scandinavia and a following decline in traditional marriage.

Note: I'm not arguing that that it's proven that the recognition of same sex marriage will weaken societal support for traditional marriage. I'm only stating that there is a rational basis for such a belief -- which is a far lower standard. I don't believe California needed to show that the prohibition of same sex marriage WOULD strengthen (or the avoid further weakening of) traditional marriage. The question is whether or not it is rational to believe that might be the case.

David said...

Based on a quick read of the first 80 or so pages of the ruling, it appears (surprise!) the the legal team put together by Boies and Olsen absolutely smoked the lawyers for California. This was largely done through factual and expert testimony. In fact, according to the Judge, the proponents of the law (presumably including some intervenors) basically advanced no factual testimony, and little expert testimony. The judge rejects one of the proponents experts as unqualified, and says the other's testimony was limited and low weight rebuttal.

The Boies-Olson pairing was a legal Dream Team and presumably had nearly unlimited top drawer backup resources. You can bet the record they made was as mindful of the appellate process as the trial process.

What this means if the case gets to the Supreme Court is hard for me to evaluate. But without doubt the opponents of Prop 8 are getting a first class airing of their legal position.

The proponents? Not so much, it seems.

Flexo said...
This comment has been removed by the author.
Krumhorn said...

That's sort of peculiar because we make all sorts of legal distinctions that bear upon equal protection based on the consequences of behavior that is immoral.

For example, we don't let felons vote. At the core of the criminal code is sanction against behavior that is immoral. That's not necessarily an argument for criminalizing homosexual conduct, but there is plenty of sexual conduct that is both immoral and criminal. And many protections that we enjoy don't apply. Some immoral sexual conduct can even keep someone confined beyond the term of a prison sentence.

Marriage as an institution has survived thousands of years as limited to boy/girl stuff. It's the hubris of our times that unplugging our society from morality and tradition and yes, religion is a key objective of the looselugnut libruls.

I guess the upside is that based upon the logic of this ruling I should stand a fair chance of success by taking my favorite goat to the courthouse for a marriage certificate.


(By the way, Ann, the word verification for my post is "fectifi" which seems to have a faint aroma of libertine conduct)

--Krumhorn

........

Flexo said...

The fact many can articulate a rational basis for reserving marriage for heterosexual couples . . .

But this is no more about articulating a rational basis for reserving marriage for heterosexual couples than articulating a rational basis for reserving 4 to 2+2 or 3+1.

The decision operates from an extremely flawed and palpably false premise, that "marriage" is nothing more than a partnership of persons. But that is not what it is.

Marriage is what it is -- no "rational basis" needed -- and it is not what it is not, and what it is not, never has been, and never can be as a matter of definition -- existential, ontological, philosophical, theological, legal, or factual -- is the union of two persons of the same sex.

It is not wrong to deny someone something that does not exist. And saying that it is wrong, does not suddenly bring that thing into existence.

David said...

victoria said...
"Great day for marriage equality!!!!"

But not so good for the democratic process.

Paul Zrimsek said...

Walker inadvertently gives the game away here:

Proponents elected not to call the majority of their
designated witnesses to testify at trial and called not a single
official proponent of Proposition 8 to explain the discrepancies
between the arguments in favor of Proposition 8 presented to voters
and the arguments presented in court.


I look forward to seeing how this decision fares at the hands of judges who are capable of telling the difference between a court case and an election.

AllenS said...

John Stodder said...
If straight people can get married, then you have to let gay people do it too, in a legal sense.

Can I marry my horse? If no, explain why.

Synova said...

"In determining rational basis, the court has to exclude interests that are deemed not legitimate for government to rely on. Lawrence v. Texas found it illegitimate to use the idea that homosexual behavior is immoral.

"Morality as determined by the majority of the citizens is insufficient grounds for public law."
"

But wouldn't that mean that basing an argument on the idea that homosexual behavior *is* moral be the same error?

If it has to do with "evolving" public opinion then it's the same either way... it relies on what somebody feels is moral or not. Laws and referendum always involve majorities so sides don't get to get picked just on the basis of which idea is held by the majority and then the constitution holds the opposite of what they want.

Dust Bunny Queen said...

Great day for marriage equality!!!!

I sure hope that Vicki remembers this elation and her little happy dance, when the enevitable blow back on this ruling occurs.

It isn't going to be pretty.

Personally, I'm not against gay marriage. I really don't care.

Even if you DO get married in California or any other state, same sex couples still are not equal because Federal Law, as understand from Arizona, trumps State laws.

I DO care that the courts are trampling on the will of the majority of the population.

Culture wars, as someone said, can also spill over into actual violence. Nothing good is going to come of this.

So do your little happy dance Vicki. For now.

A.W. said...

Ann

> That's what Lawrence said.

Absolutely. And its crap. Complete crap. To the point that when pressed, the court will probably abandon it as dictim.

I tear that piece of legal idiocy apart, here: http://allergic2bull.blogspot.com/2010/06/has-health-care-reform-overturned.html

I will add that this judge should never have sat in this case. The correct headline is this: Gay judge rules in favor of gay marriage. Does anyone thing his impartiality can be reasonably questioned?

Maguro said...

Is there any rational basis for denying polygamy, then? If so, what is it?

XWL said...

Personally, I think this relatively recent experiment in governments involving themselves in marriage should be ended, period. That's the fairest way to end this conflict between tradition and equal protection. Marriage by its nature is discriminatory, no matter who you allow to marry, given that there will always be single people as well, so as soon as certain benefits accrue to married couples, then singles (or in the case of gay couples, couples that aren't recognized by law) are screwed.

Marriage, as recognized by a 'state' rather than by cultural and religious institutions has been around for only a few centuries, while the marriage custom has been around for thousands of years, so if push comes to shove, rather than redefining the tradition of marriage in a new way, seems more sensible to end the practice of granting that institution special legal rights and protections.

a psychiatrist who learned from veterans said...

"Morality as determined by the majority of the citizens is insufficient grounds for public law."


I can see where that is germane to Lawrence v. Texas. The problem is that unless it is narrowly construed you back into the perspective of Nazism and Stalinism. If morality 'as determined etc.' can be found to be the impediment to a certain policy then it becomes within the purview of the authority to countermand the restriction. That 'morality can be found to be the impediment' probably depends on the intensity of the feeling of the reviewer. Other restrictions within the Constitution may only be a gossamer fabric.

A.W. said...

AllenS

> Can I marry my horse? If no, explain why.

No, better question. “Can I, a man, marry my blood brother? If not, explain why not.”

And no I am not comparing gay sex to gay incestuous sex. What I am saying is that you have to explain the principled distinction between the two. And simply saying, “but incest is icky” doesn’t cut it.

If you read my post on Lawrence (http://allergic2bull.blogspot.com/2010/06/has-health-care-reform-overturned.html) you will see why there is no way to ban gay incestuous marriage without resorting to principles that can rationally be used against gay marriage.

Quayle said...

reflects an
evolution in the understanding of gender rather than a change in
marriage.”


With all his scientific expertise, how does the judge know that it is evolution that is operative here and not the second law of thermodynamics?

He doesn't say and pretty clearly he doesn't care.

But it was a nice trick to appeal to science. It makes his opinion seem..... what's the word?........rational.

AllenS said...

Can I marry my horse, and two women?

Flexo said...

“Can I, a man, marry my blood brother? If not, explain why not.”

The better question is, after the estate tax returns to confiscate wealth, can I marry my mother?

I sure would like to take advantage of that marital exemption.

ricpic said...

7 million California votes nullified by a homosexual judge who should have recused himself in the first place.

Cedarford said...

It is true, Vaugh Walker is one of two openly homosexual Federal judges on that Circuit.

I wouldn't call him a fudgepacker.

Nor being gay would necessarily mean he should recuse himself in favor of a heterosexual.

But his motives for overturning the voter's will for the second time after Prop 8 met and passed every constitutional challenge before being allowed to be voted on surely will be questioned. Widely questioned.

Dust Bunny Queen said...

Is there any rational basis for denying polygamy, then? If so, what is it?

if "Morality as determined by the majority of the citizens is insufficient grounds for public law."

Then what is to prevent the courts from deciding that it is ok to marry your own sibling, to marry your mother, to allow children to be sold or traded for some goats and married to the local rancher at the age of 9?

If public morality be damned, then why is anything not legal. Who is it then that determines morality if it isn't the PEOPLE? Who?

Moose said...

The thing is, there is no "rational" basis for protecting the young, the infirm, the insane from the predations of the masses. Those laws come from an irrational need to protect those less capable than us.

Rational limitations of human behavior are, oddly enough, considered somehow racist or bigoted. How can you judge someone who sits on the street and pisses in their pants? Or someone who wishes to sleep with their children? No, they are not equivalent to gay marriage, but then building a mosque near Ground Zero is enlightened.

Innit?

John Stodder said...

Hit the chapels, boys and girls, well, not like that, you know, but go for it! Welcome to HELL!

Sam Kinison, is that you? You're alive?

Synova said...

"But now that gay people want to get married, we're finding that there's nothing in the Constitution on which a prohibition can be based that can overcome the assertion of equal protection under the law."

Can you think of any prohibition on marriage that is not essentially a moral judgment? Even one?

Age?

Current marital status?

Sanguinuity?

Anything?

Quayle said...

"If morality 'as determined etc.' can be found to be the impediment to a certain policy then it becomes within the purview of the authority to countermand the restriction.

If that is so, then I guess it means that morality as determined by a majority of the public must be a super majority to change the constitution.

And that's fine with me, except that one single sitting judge can look into the ether and see the silhouette of a "right" in the Constitution - one that has never heretofore been seen - and pokes a hole in the law through which all sorts of sludge can seep.

It is the ratchet effect that is problematic.

Almost Ali said...

I'm wondering when the majority will reach the breaking point.

peter hoh said...

Go for it, Allen.

But you might want to try another state. The filing fee for a marriage license is kinda high in Wisconsin.

For all of you man-and-goat fans out there, the Stranger posted this note from Daisy the Goat:

While I am greatly heartened by the strides made today by my gay brothers and sisters, there is still much work to be done in the grassy fields of justice. Until my beloved life partner Kevin and I—like hundreds of other loving, committed couples—are allowed to join in holy interspecies matrimony in front of God and Uncle Sam and everybody, there will always be a shroud of injustice over this great nation. It is my fondest wish that some day my kids, and my kids' kids, can ride this slippery slope all the way to the altar. Now excuse me while I eat this aluminum can. Baaaa.

Dust Bunny Queen said...

rather than redefining the tradition of marriage in a new way, seems more sensible to end the practice of granting that institution special legal rights and protections.

This is actually the sensible solution.

Get government out of the business of sanctioning marriage or unions between consenting adults.

Churches and religious institutions can decide to sanction or not sanction unions according to their religious tennents.

Moose said...

It's rare that Sully actually proves my point: From the Gaylord's blog:

Walker:"Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians."

Well that tears it, dunnit? Morality is not a functional basis from which to mandate legal limitations.

You want slippery slope? Dude - you got it...

AllenS said...

Can Osama bin Laden marry his goat?

Sorry, trick question.

Ironclad said...

I echo the comment above - what will forbid marriage of closely related relatives - siblings, parents, cousins that is currently prohibited? I see polygamy on the horizon too - after all - everyone agrees on the proposition in the deal.

Get the State out of marriage completely - that should strictly be a church function as a religious bonding. Civil partnerships for everyone as the legal structure for equality.

Salamandyr said...
This comment has been removed by the author.
Dust Bunny Queen said...

If our cultural elites and arbiters of the laws decided that human sacrifice by cutting the hearts out of living victims as offerings to the sun to stop global warming is the law and the people find this morally repugnat...

It's just tough shit, I guess.

The sky is the limit.

Jenner said...

Ann-

Has any court ever ruled that an amendment to a constitution was unconstitutional? I am thinking that in the case of a state court versus a state constitution that would be a question of first impression - quite interesting and I've never heard of a case like that.

In this case - the federal court ruling that a proper amendment to a state constitution is in conflict with the US Constitution would perhaps be an easier argument to make, I think on 1st Amendment grounds. What law is out there on this?

Revenant said...
This comment has been removed by the author.
El Pollo Real said...

In future I want an "impact on constitutionality” assessment for every proposition statement in the election material which I receive. We’re hurtin’ out here and we can’t afford all this litigation!

Revenant said...

I'm torn between being pleased that gay marriages will be recognized and being annoyed that the court is, as usual, just making shit up.

Dead Julius said...

@DBQ-

Who is it then that determines morality if it isn't the PEOPLE? Who?

The ruling class does. It's always been that way. The "people" have nothing to do with it. Lovely romantic notion tho'.

peter hoh said...

Rev, this is not the way I want this issue decided, either.

dbp said...

"Based on a quick read of the first 80 or so pages of the ruling, it appears (surprise!) the the legal team put together by Boies and Olsen absolutely smoked the lawyers for California. "

I think it is entirely possible the lawyers for California were not really trying to win. None of the powers-that-be in CA were in favor of Prop 8, they don't give a damn what the people think any more than the judge does.

former law student said...

Yes a tired old morality is the only thing keeping tens of women from marrying the man they really love -- me.

John Stodder said...
This comment has been removed by the author.
Palladian said...

Marriage is NOT a rational institution. There is absolutely no reason the State should be involved in any marriage. The only way to solve this intractable game of ping-pong is for the State to butt out of the institution of marriage, at least in terms of defining and regulating its participants.

This meddling in a religious/romantic/emotional issue makes as much sense as the State adjudicating the existence of God.

But of course that's not going to happen. There's too much money at stake, and too much power over people's lives to ever think of relinquishing it. Liberals will continue to use gay issues as a weapon in their revolting little political gamesmanship, the same way they use blacks, Mexicans and every other potential "victim"/bludgeon. Social conservatives will continue to tilt at the morality windmill, pretending that it didn't already burn down decades ago.

The debate over civil marriage is an irresistible draw for busybodies, both left and right. Everyone's arguing over the details when the fundamental premise is completely wrong and boneheaded.

MadisonMan said...

Can I marry my horse? If no, explain why.

You have a horse that can give consent?

I suspect neigh.

Paul Zrimsek said...

I echo the comment above - what will forbid marriage of closely related relatives - siblings, parents, cousins that is currently prohibited?

Oh, it goes far beyond that. If the disagreement of a panel of academic mandarins is sufficient to damn the public's contrary view as "irrational", I don't see much of a future for, e.g., minimum-wage laws.

VW: inate. How the hell would I know?

Lucien said...

Perhaps California should have argued that it has a rational and legitimate interest in treating the individual as the fundamental locus of rights and responsibilities in society and that individualism and respect for the rights and dutes of the individual is a bedrock principle of our form of government.

BUT, based on thousands of years of cultrual and societal norms, actual human behavior, adn the laws of other states and nations, it becomes a practical necessity to the state to make exceptions to the rule of individual rights and responsibilities in the case of men and women married to each other, and to some (lesser?/different?)extent to families.

However, the state has a rational basis in making those exceptions to the general rule as narrow as possible in order to preserve the general rule.

Then if the state could put on evidence supporting that argument, it might do better in a trial(or not).

AllenS said...

Your horse cannot consent to marriage.

My horse lets me ride her. I understand that as a consensual arrangement.

John Stodder said...

Then what is to prevent the courts from deciding that it is ok to marry your own sibling, to marry your mother, to allow children to be sold or traded for some goats and married to the local rancher at the age of 9?

You articulate a bunch of different scenarios here, along with AllenS asking if it's okay to marry his horse.

Some of these are easy, some less so.

The easy ones have to do with the concept of mutual consent.

Your horse cannot consent to marriage. Nor can children, especially under a scenario of out-and-out coercion as you describe. They aren't property and can't be traded in for livestock. But I think laws restricting marriage to adults can survive this kind of scrutiny on the same basis that the law recognizes that minor can't enter into contracts. The risk of coercion is too high.

Someone else raised the question of polygamy. I don't see how the case for polygamy is aided by this. Marriage is defined as a union of two people. Allowing two gay people to marry is saying, as Americans, you have equal access to this thing we call marriage that involves two people and a whole bunch of mutual obligations and rights. If three people show up and ask for a marriage license, I think you can deny them that on the basis that the law limits the population of a marriage to two people.

If you're talking about siblings getting married, or a parent and (adult) child getting married, it's harder to draw the line. But I think you can do it because there are laws against incest, laws that are applied equally to straights and gays.

No, this is pretty straightforward. Marriage is an institution for two people, two consenting adults. Laws against incest remain in force, so a marriage license cannot be given to siblings or a parent and child. Consenting means someone who has the legal ability to give consent, which leaves out minors and animals. All that's going to change is that you can't prevent someone from marrying their fellow homosexual, because in this country it is illegal to discriminate against homosexuals.

Palladian said...

"I'm torn between being pleased that gay marriages will be recognized and being annoyed that the court is, as usual, just making shit up."

Yes, it's difficult because I want both sides to lose, even though I'm both a faggot and a lover of judicial modesty and governmental restraint.

Why do people on either "side" of this issue believe and desire the secular State to be an arbiter of morality?

John Stodder said...

sorry for the double post. Google told me my first try was too long, so I edited it. I'll toss the first version. Because, yknow, Google was right. It was too long.

The Crack Emcee said...

Fuck, why is always on me to do this shit? I don't understand any of this:

Weren't you all just screaming "Congratulations!" to Ann and Meade on the one year anniversary of their "marriage" - a ceremony which they both have both performed, twice now, each time swearing life-long devotion?

What do you people want? It's either marriage or bullshit, people, you can't have it both ways.

peter hoh said...

A.W. wrote: I will add that this judge should never have sat in this case. The correct headline is this: Gay judge rules in favor of gay marriage. Does anyone thing his impartiality can be reasonably questioned?

Surely you remember the case in which Republican judges ruled in favor of Republican candidate.

Skyler said...

Courts are in such a state of self-impressed power mongering, that I have little doubt that if we enact an amendment to the US Constitution denying homosexual "marriage," that the courts will declare the Constitutional Amendment to be unconstitutional.

Palladian said...

"Marriage is defined as a union of two people."

Defined by whom?

rhhardin said...

The opposition isn't that gay behavior is immoral, but that it isn't what a marriage is.

former law student said...

Marriage is generally defined as a union of two people.

Sure, now. But just a few years ago marriage was generally defined as a union of one man and one woman. Once you start questioning your assumptions, you can't just slam the door shut and lock it.

Allowing two gay people to marry is saying, as Americans, you have equal access to this thing we call marriage that involves two people and a whole bunch of mutual obligations and rights.

Just like a loving brother and sister.

El Pollo Real said...
This comment has been removed by the author.
former law student said...

Laws against incest remain in force

What's behind laws against incest, other than the same "Ick" factor behind laws against SSM?

AllenS said...

And don't forget, my horse is a female. So there.

dbp said...

"All that's going to change is that you can't prevent someone from marrying their fellow homosexual, because in this country it is illegal to discriminate against homosexuals."

This skips a logical step. I don't think any state bars homosexuals from marriage, they don't even ask if you are homosexual. They simply define marriage as it has been for thousands of years: A union of a man and a woman.

former law student said...

I have to repeat:Nothing has ever prevented homosexuals from getting married. They simply have to marry people of the opposite sex, just as heterosexuals have to.

Synova said...

"Someone else raised the question of polygamy. I don't see how the case for polygamy is aided by this. Marriage is generally defined as a union of two people."

But John, Historically it very much is not. But why talk about History when even contemporarily marriage very much is not limited to two people?

On what basis did we persecute the Mormons and drive them to Utah?

"But I think you can do it by defining marriage as available only to a couple who are not blood relatives up to a specified level of cousinhood. That doesn't implicate the status of someone as a heterosexual or homosexual."

You do it by making arbitrary laws that exclude some people and not others.

But if arbitrary laws that exclude some people and not others in relationship to marriage are unconstitutional, then on what basis do you make those laws?

If we *allow* arbitrary laws to govern marriage then we can decide to change the rules to include same sex couples. If we rule that arbitrary laws that treat individuals different depending on who they want to get married to, then we can't keep on just deciding which people and which situations count or not.

AllenS said...

I get the feeling that this judge wouldn't let me marry my mother, but would let me marry my father.

El Pollo Real said...

John Stodder wrote: Marriage is defined as a union of two people.

Yes but definitions change and we the people are not our own lexicographers.

John Stodder said...

...and being annoyed that the court is, as usual, just making shit up.

What are they making up? Leaving aside all the emotions this issue triggers for some people, what is so "made-up" about equal protection?

I hear all these arguments that marriage is a 3,000-year-old institution and it's always been done one way, and now because of a bunch of crazy lawyers and judges, we now have to see it spoiled by gays.

But, the truth is, the bar against gay marriage was ALWAYS untenable, legally, given what the Constitution says. It just took till now for gays to be in a position to demand this right be enforced without risking their lives.

I would argue that getting rid of laws prohibiting gay marriage is returning us to our Constitutional roots. Much in the same way Lincoln argued against the legitimacy of slavery at Cooper Union, demonstrating with remorseless logic that the institution of slavery was inimical to what the Founding Fathers envisioned and outlined in the nation's founding documents.

In this case, it is gay marriage's opponents who are playing the role of the liberals, "making shit up," reading something in the Constitution that isn't there, wanting the Constitution to be a "living document" that conforms to their view of morality just because they feel strongly about it.

Synova said...

"What's behind laws against incest, other than the same "Ick" factor behind laws against SSM?"

The idea that inbreeding causes genetic problems to manifest.

Thing is that as a "scientific reason" it really no longer applies since inherited diseases can be tested for or afflicted fetuses aborted or the happy couple can pledge to be without issue.

So... no reason at all.

And first cousins wasn't even considered "ick" until very recently.

Dust Bunny Queen said...

Marriage is defined as a union of two people.

Actually, in scientific and metalurgucal terms marriage is defined as the conjoining of two (or more) DIFFERENT substances. Married metals is the blending of silver, copper, brass etc. Not the blending of copper and copper.

Therefore, marriage should be defined as the conjoining of two (or more) different genders man and woman.


If you're talking about siblings getting married, or a parent and (adult) child getting married, it's harder to draw the line. But I think you can do it because there are laws against incest, laws that are applied equally to straights and gays.


But those laws are based on the morality as determined by the majority of the citizens and we have been told that doesn't count.

So if we get enough really good lawyers maybe you can marry your parent and take advantage of the estate tax marriage exemption. Because it is not a part of our moral culture, it is so very unfair that you can't marry your sister or brother.

Why can't you and your brother share the same wife? How about several wives? How many would be acceptable.

Palladian said...

"They simply define marriage as it has been for thousands of years: A union of a man and a woman."

Why is a secular government allowed to do that?

Why do you require the secular state to uphold your moral dogma? Is it (and I suspect it is) because your churches have failed to do so?

The only legitimate purpose of the law and of the government is to protect the life, liberty, and pursuit of happiness of the citizenry. The state does not exist to decide upon or defend specific religious dogma or tradition.

c3 said...

Onward and upward.

Palladian;

Why does your house keep changing?

Skyler said...

I wonder if this will be heard en banc.

Palladian said...

"What are they making up? Leaving aside all the emotions this issue triggers for some people, what is so "made-up" about equal protection?"

The issue is that marriage is made up.

Kirstin said...

@former law student. Yes, that's why some call it same-sex marriage instead of gay marriage.

Obviously, supporters want same-sex marriage that is recognized by the government. Anyone could have a marriage ceremony without government involvement or recognition right now.

The Crack Emcee said...

I say the concept of marriage has already watered down so much - by allowing multiple marriages - that you have no argument against this.

Marriage means nothing now.

That's what I learned doing my ordeal: no one believed in my marriage but, instead, what my wife wanted, alone. They told me so, every step of the way.

If you ask me, you're all lying about what you think and believe.

Palladian said...

"Why does your house keep changing?"

Life is change.

Synova said...

AllenS, the reason you give for marrying your mother, to keep wealth in the family, is the main reason for marriage within families. Long History of that sort of thing.

And of all the variations on domestic arrangements the ability to favor family members for all of those "marriage" sorts of benefits is the one that makes the most sense to me. Get an elderly parent on your health insurance or partner with your sister to raise your children.

Useful things.

We aren't pretending that people get married for the sex are we?

The Crack Emcee said...

"The truth is, the bar against gay marriage was ALWAYS untenable, legally, given what the Constitution says. It just took till now for gays to be in a position to demand this right be enforced without risking their lives."

Bullshit. If marriage was respected, it would be defined as between a man and a woman for life, period. That's over with no-fault. That's what opened the door to this.

Please, explain to me why I'm wrong.

Ben (The Tiger in Exile) said...

Well, if this decision is upheld, there'd be legal gay marriage across the nation, no?

I think that's where the law will be in fifty years, and it's where it should be, but I just don't see the equal protection argument as anything other than a tautology -- it's true because it's true.

But whatever. We should extend civil marriage to gay couples, anyway, so if we do it a few years ahead of time, undemocratically, I'm annoyed but not outraged.

Eric said...

Yet another judge usurping the powers of the legislature on flimsy pretext.

Well, the worm turns. I hope the people who are celebrating now remember this when it does. We haven't actually had a written constitution in decades, and these kinds of rulings are waking people up to that fact.

And eventually they're going to decide if the damn thing is living and breathing it needs to live and breath in a different direction.

El Pollo Real said...

A.W. wrote: I will add that this judge should never have sat in this case. The correct headline is this: Gay judge rules in favor of gay marriage. Does anyone thing his impartiality can be reasonably questioned?

Peter Hoh replied: Surely you remember the case in which Republican judges ruled in favor of Republican candidate.

Peter that was an incredible non sequitur--what does being gay have to do with being non republican--except (I fear) as you define it?? (unless of course more sarcasm detector is broken again).

John Stodder said...

Synova,

I don't see how defining marriage as between two people is in the same class as defining marriage as unavailable to homosexual couples. In the first instance, you are simply following a definition, just as the law explicitly or implicitly defines what a truck is in making laws about highway safety. You can change that definition, but there is no Constitutional requirement to do so. In the second instance, you are agreeing on a definition of the institution of marriage, but arbitrarily limiting WHO can have access to it.

Equal protection protects WHO, not WHAT.

As for incest, I do find myself wondering how long laws preventing consenting adults from the same nuclear family from having sex, making babies or getting married will hold up. You can make arguments about custom and culture, and you can make arguments about genetics and public health, and perhaps those would prevail. But the vulnerability of incest laws is not increased by this decision because, once again, laws barring incest don't discriminate against some people based on a classification. Incest is prohibited to all.

Seven Machos said...

Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis

California does have an interest in discriminating against gay men and lesbians concerning marriage because the state's interest in marriage only extends insofar as the way in which it affects children and transfers property between generations.

Proposition 8 does not prevent California from fulfilling its constitutional obligation to provide marriages on an equal basis because all men and all women are entitled to marry one of each other.

I hope to hell Anthony Kennedy sees this comment.

peter hoh said...

Crack, I've always said it goes back to no-fault, so I won't be disagreeing with you.

Nineteen sixty-nine, the year St. Ronnie signed the nation's first no-fault law.

Dust Bunny Queen said...

laws barring incest don't discriminate against some people based on a classification. Incest is prohibited to all.

We are talking about marriage. What if I want to marry my brother, or father, or uncle...... but we don't ever have sex? There is no incest then is there?.

As Synova pointed out marriage within families has been historically allowed for thousands of years. Witness the Ptolmeys of Egypt.

So why should I be discriminated against by not being allowed to marry within my family?

And....how is it the government's business who I fuck or who is the father of my child if I'm not asking for the government to support my child or myself.

sunsong said...

This is, for me, a fantastic day! I am thrilled. I think it is obvious that there is no jutification for government to deny homosexuals equal liberty. It really doesn't matter whether people like gays or not or think that they are sinners or not. What matters is apllying the law equally.

I understand, that especially for old people, they have been taught that homosexuality is bad and wrong and that they have real resistance to the idea of gays and lesbians being treated as *equal* to them. But they will have to adjust.

Sciety evolves. It changes. Gays have always existed - but as someone said - now they are demanding equal treatment. And there is no good reason to deny it.

Sofa King said...

What is the non-moral, rational reason for our laws to discriminate for life over death?

The Crack Emcee said...

Peter Hoh,

Thank you for that answer. I think the rest of 'em are getting weak in the knees when faced with the real issue they've all accepted, defended, and either lived with or took advantage of already.

This whole discussion is as bullshit as that cartoon about university websites. 112 posts so far, here, of bullshit.

peter hoh said...

El Pollo, that was a jesting reference to Bush v. Gore.

pduggie said...

As a man, I picked a woman to marry. I didn't survey all of humanity and decide on one human I liked. I was looking for a woman, a woman who not only had the female sex, but participated in the social construction of western female gender.

Who is the judge to tell me my marriage is NOT part of an institution that is gendered?

John Stodder said...

Bullshit. If marriage was respected, it would be defined as between a man and a woman for life, period. That's over with no-fault. That's what opened the door to this.

The Catholics among other religions still believe this, and can enforce it with respect to membership in the Church. Catholic churches also don't tend to conduct gay marriages. Neither of those things are implicated by this decision, which has no bearing on religion.

I would be very opposed to any law that sought to force churches, synagogues, mosques, Indian tribes or any other private association to perform gay marriages. This is about the secular, legal side of marriage.

You are free to adhere to principles and codes of marriage that would prohibit divorce. Just don't ask the state to enforce them. Especially not against other people who don't share your opinion about marriage.

Seven Machos said...

I think it is obvious that there is no jutification for government to deny homosexuals equal liberty.

Which gay people cannot get married in the United States? Where is it illegal?

Bonus question: Do you understand what illegal means?

Synova said...

I don't think that the State can get out of sanctioning domestic contracts because of the interest the State has in defining who is financially responsible in family matters BUT I honestly do not know of any reason why that sanction has to be limited to only particular sorts of domestic arrangements and I do include parents and siblings and domestic groups greater than two adults.

I find it amusing when those pushing for same sex marriage express outrage at the notion of expanding that sanction to other sorts of arrangements, as if quite obviously there is something wrong with those other arrangements.

Why shouldn't Allen marry his mother? (Yes, I know he was joking. I'm not.) Why shouldn't my Wiccan friend marry a woman and two men?

Maybe I feel this way because of my military experience where it really wasn't all that uncommon for people to add "dependents" to their responsibilities who could be a parent or other family member in order to help and support them or sometimes, in the case of a single person, to add an adult dependent, as a Captain I met had done with her mother, in order that she be allowed to adopt children.

Hagar said...

I think this smells like a "Dred Scott" decision.

Krumhorn said...

XWL makes the argument that there is no basis for the state treating married heterosetchual couples differently than others. However, there is substantial evidence that there is a compelling state interest in doing so.

Casting our view over the great span of time during which humans have walked the Earth, probably every kind of social order and permutation has been attempted. On an evolutionary basis alone, the carcasses of failed social experiments have been buried in the mists of unrecorded history.

And yet the single unit of social order that has managed to survive in virtually all cultures is the committed relationship of a man and woman. Does anyone doubt the societal benefit that follows from the demonstrable improvement in the safety and economic status of women when they marry?

Is there any doubt that children, even in a time of 50% of marriages ending in divorce, have dramatically more stable lives when they grow up in a family unit with mom and dad?

Frankly, can we deny the civilizing effect of marriage on men? We don't have to do too many mind experiments to imagine the brutish nature of human life if men were disconnected from any obligations of sperm and women and children lived without their protection.

Oh, wait...we can just look at the unrelenting social decay in poor urban communities in the post 60's social welfare state that eroded these essential values of society.

My own view is that we should all be pretty tolerant of the personal choices of others that don't cause societal harm. But that's not an argument against granting special status protections and benefits to behavior that actually advances societal interests.

Naturally, a homosetchual federal judge is unlikely to be willing to accept the conclusion that committed unions of one adult man and one unrelated adult woman are manifestly superior, from a long term societal viewpoint, than any other. But that doesn't mean that society shouldn't be able to control the outcome of that decision through its votes. That's exactly how such decisions should be made.

--Krumhorn

.......

Seven Machos said...

Just don't ask the state to enforce them.

John -- This is a silly argument. People who get married are granted an additional set of rights and responsibilities. It's exactly the same as when a person starts a business as a partnership, which is the default position, where all of her personal assets are put at risk related to the business, and when said person forms a corporation. The corporation is extended an additional set of rights and responsibilities, but the business owner must meet a few conditions to be a corporation.

A condition of the corporation of marriage, according to the voters of California, is a single man and a single woman.

Anthony Kennedy: take notes here. This is a really good line of argument, too.

Sixty Grit said...
This comment has been removed by the author.
Revenant said...

What are they making up? Leaving aside all the emotions this issue triggers for some people, what is so "made-up" about equal protection?

There was no violation of equal protection. The judge invented one.

The Crack Emcee said...

"This is about the secular, legal side of marriage."

I am an atheist. I got married before a justice of the peace with the full knowledge of what I was doing.

it was it's undoing that made no sense. Especially because I knew my wife was suffering from the grief of her mother's death. Like I said, no one cared. It was the state - the secular, legal side - that defined marriage as anything you want it to be. That was the lead-in to this decision and nothing more.

Seven Machos said...

Synova -- Why shouldn't a 24-year-old be able to have sex with a 13-year-old? Grass on the field...

John Stodder said...

What's behind laws against incest, other than the same "Ick" factor behind laws against SSM?

Quite possibly, laws against incest are indefensible. But I think the rational basis started with the presumption that marriage leads to children, and so was concerned that an incestuous union would worsen the odds for these children to develop genetic illnesses from combining recessive genes.

Given all the possible incest scenarios that don't involve children, I do wonder if these laws would survive a challenge. Is anyone challenging them?

But this is a distraction from the question at hand. How can you justify depriving homosexuals of the right to marry one another? To talk about incest and bestiality is not only insulting to gays, it is confusing different categories of rights.

jr565 said...

John Stodder wrote:
But the vulnerability of incest laws is not increased by this decision because, once again, laws barring incest don't discriminate against some people based on a classification. Incest is prohibited to all.


So was gay marriage. If you were gay or straight you had to marry someone of the opposite gender. All people had the same restrictions placed on them. so what's the difference?
Granted, most straights wouldn't want to marry someone of the same gender,but regardless, the restriction was identical for all. And I imagine most peope wouldn't want to have an incestual marriage, so for those people the law works out. But for those who do want to marry within the family, the law goes against them.

Revenant said...

Incest is prohibited to all.

Sort of like marrying a member of the same gender was forbidden to all?

There is no more of a rational basis for preventing a father from marrying his son than there is for preventing a middle-aged man from marrying a younger man. There's the "ick" factor, but that's been ruled out as an argument. There's the "tradition" factor, but that's been ruled out too. There's the "that's not what the law says" argument, but, once again, that has been ruled out.

The only people allowed to define what counts as a legitimate marriage are, apparently, judges. Neither the people nor the legislative branch nor the executive branch are allowed a say.

The Crack Emcee said...

"How can you justify depriving homosexuals of the right to marry one another?"

Get rid of no-fault and defend marriage.

Methadras said...

Moral relativism wins.

inatas = SatanI spelled backwards.

Seven Machos said...

How can you justify depriving homosexuals of the right to marry one another? To talk about incest and bestiality is not only insulting to gays, it is confusing different categories of rights.

This goes right to the heart of rational basis. There is a rational basis for preventing incestuous marriages because incestuous marriages are far more likely to lead to kids that are all fucked up.

Easy.

peter hoh said...

Newt has spoken!!

Judge Walker's ruling overturning Prop 8 is an outrageous disrespect for our Constitution and for the majority of people of the United States who believe marriage is the union of husband and wife. In every state of the union from California to Maine to Georgia, where the people have had a chance to vote they've affirmed that marriage is the union of one man and one woman. Congress now has the responsibility to act immediately to reaffirm marriage as a union of one man and one woman as our national policy. Today’s notorious decision also underscores the importance of the Senate vote tomorrow on the nomination of Elena Kagan to the Supreme Court because judges who oppose the American people are a growing threat to our society.

Is he ready to live by this one man, one woman rule? Or is he really for one man, one woman, and then another woman, and then another woman?

Seven Machos said...

Homosexuals are not a class. QED.

pduggie said...

Crack EMCEE.

I agree with you do. The barn door opened with divorce.

Andrew Sullvian used to ask why conservatives were fighting this, when marriage seemed to have tougher enemies. I said I'd sign up to fight easy divorce too, but there wasn't a viable movement. I was willing for incrementalism and turning a car headed over a cliff

Seven Machos said...

Is he ready to live by this one man, one woman rule? Or is he really for one man, one woman, and then another woman, and then another woman?

The hypocrisy is hilarious there but the state interest in marriage only extends to children and transfer of property. Am I being a crazy libertarian when I say that? I think it's obvious.

The Crack Emcee said...

"Is he really for one man, one woman, and then another woman, and then another woman?"

If you believe in marriage, isn't that what he's done?

And I'd like to add you guys can expend a lot of energy talking around a issue, rather than dealing with it.

Methadras said...

By equating homosexuality to heterosexuality, the judge summarily negates homo/heterosexuality and therefore that concept is rendered meaningless. One equates the other, so their inherent values are identical making homosexuality the same as heterosexuality and in doing so paves the way for allowing anyone to marry anyone else of their choosing. Which has a further chilling effect of summarily negating the value of marriage from any meaningful definition because a homosexual marriage would be identical to a heterosexual one. When everything is the same, it ends up meaning nothing.

Synova said...

"I don't see how defining marriage as between two people is in the same class as defining marriage as unavailable to homosexual couples."

How not?

Defining marriage as "two people" is a limitation on who can marry who since anyone already married is off limits for no particular reason but that everyone agrees on the limitation. And it's even a limitation with less support in the world today than SSM and little to no support Historically. Marriages with more than two members are commonplace in the world.

And, although they can't legally get married to more than one person, polyamory isn't exactly unheard of in the US either. Poly persons consider themselves wired differently to make multiperson bonding natural for them while they view most people naturally wired for pair bonding. How is the limitation on a poly bonded group any different at all from a gay man and his committed partner?

Almost Ali said...

Unable to find any rational legal basis for "his" ruling, I looked up Judge Vaughn Walker, and my efforts were rewarded; he's gay.

Seven Machos said...

I will also throw my two cents into the divorce ring.

With my theory that the state's interest in marriage only extends to the welfare of children and the transfer of property, it is quite obvious that the state has an interest in distributing that property fairly and protecting those children when the marriage agreement becomes no longer tenable. We want our corporations to be able to be dissolved easily, and marriage is merely a special type of corporation.

Sofa King said...

There is a rational basis for preventing incestuous marriages because incestuous marriages are far more likely to lead to kids that are all fucked up.

Unpack this. What is the rational basis for preventing fucked up kids? Remember, this cannot be based on moral judgments.

Sixty Grit said...
This comment has been removed by the author.
Methadras said...

peter hoh said...

Crack, I've always said it goes back to no-fault, so I won't be disagreeing with you.

Nineteen sixty-nine, the year St. Ronnie signed the nation's first no-fault law.


Have you seen this?

http://weddedabyss.wordpress.com/

jr565 said...

Synova wrote:
And it's even a limitation with less support in the world today than SSM and little to no support Historically. Marriages with more than two members are commonplace in the world.


Seriously. Perhaps this country owes the Mormons an apology.

Seven Machos said...

What is the rational basis for preventing fucked up kids? Remember, this cannot be based on moral judgments.

All judgment is moral. Don't kid yourself. Why is murder illegal? Why can't I put a strip mall on my property without government consent?
Why can't 24-year-olds fuck 13-year-olds? Why is there law?

Synova said...

"Is he ready to live by this one man, one woman rule? Or is he really for one man, one woman, and then another woman, and then another woman?"

My Anthro 101 teacher 25 years ago explained that what we had in this country wasn't monogamy, but serial polygamy.

I wouldn't want a culture where a person couldn't get divorced, but I think no-fault divorce hasn't done anything good for anyone except for the person who wants to screw over a faithful and reasonably decent spouse on their way out the door.

jr565 said...

There is a rational basis for preventing incestuous marriages because incestuous marriages are far more likely to lead to kids that are all fucked up."


That assumes of course that the family members can even have children. That's only a factor if you take the narrow view of marriage being between a man and a woman. What is the rational basis against denying same sex family members from marrying, since they can't have children with each other anyway and thus can't have children with messed up genes.

Sofa King said...

7M: Exactly my point. What we have is judges declaring that shared morality cannot justify a law, specifically so he can substitute his private morality in its place. It is tyrannical.

Matt said...

I hope someone puts all the ignorant and silly right wing views against gay marriage in a time capsule and then opens it in 50 years so we can all laugh and cringe at them.

The slippery slop argument about incest or dogs is particularly absurd. You know, before civil rights the same "logic" was applied to giving rights to blacks. Or giving rights to blacks marrying whites. There was a fear that society would go to hell in a handbacket. It didn't.

If you really think people will now make an argument for marrying their mom or their dog just see how far it gets in the courts. It won't get far. Anyone making the arguments full well knows this but they keep playing that card. Bizarre.

Anyway, good ruling.

Seven Machos said...

The rational basis for denying all same-sex marriage is simply that same-sex marriage doesn't deny anyone any rights. All men and all women are able to marry one of each other.

Furthermore, as I have screeched in this forum for years, gay people are in no way whatsoever at all prevented from marrying each other.

Eric said...

All judgment is moral. Don't kid yourself. Why is murder illegal? Why can't I put a strip mall on my property without government consent?
Why can't 24-year-olds fuck 13-year-olds? Why is there law?


If only we had a branch of government to make these kinds of decisions.

Krumhorn said...

John Stoddard seems to feel strongly that incest is barred to everyone so it is inapt to extend the logic of this decision that far.

However, gays are not barred from marriage. They just cannot marry each other. Marriage is an institution that is open and availing to all people. However, as in so many other things, there are qualifications.

You can't get married in many states without a blood test. You must be an adult. You must be human. You must be unmarried to marry. And two other qualifications are that the parties must be unrelated and of different genders.

While nobody denies me or anyone else the right to use a public restroom, I can be arrested if I walk into the ladies' restroom.

You also have to have a license to drive a car on public roads, and that clearly works against those too stupid to pass the test or too short to see over the wheel.

And all these qualifications serve societal interests.

--Krumhorn

.......

...........

Seven Machos said...

Matt -- How are gay people prevented from getting married anywhere in the United States?

...crickets...

Seven Machos said...

...Crickets...

Methadras said...

At this point, I have personally come to the conclusion that homosexuality is really a farce that is played out on a cultural level to the point of absurdity in the wants, needs, and desires of homosexuals, homosexuality, it's cultural basis as a function of how it fits into society. Not just American society, but societies around the world. As a heterosexual man, I can, today, proclaim that I am a homosexual with nary a thought and no proof to the contrary and I would join a protected class. If I hang out long enough as a homosexual, I would probably find myself with a whole new class rights above and beyond those of mortal heterosexuals. I can't wait to enact my new status.

Dust Bunny Queen said...

The rational basis for denying all same-sex marriage is simply that same-sex marriage doesn't deny anyone any rights.

ESPECIALLY IN THE STATE OF CALIFORNIA where civil unions have exactly the same state granted rights as marriages.

Let me repeat that.....they have exactly the same STATE granted rights. They STILL have those same rights.

Overturning Prop 8 does nothing on the Federal Level.

This is judicial activism pure and simple.

Seven Machos said...

...sweet silence...

The Crack Emcee said...

Matt,

"I hope someone puts all the ignorant and silly right wing views against gay marriage in a time capsule and then opens it in 50 years so we can all laugh and cringe at them.

The slippery slop argument about incest or dogs is particularly absurd."


Bullshit again. With a few exceptions, you guys are all ignoring the issue I've made - the only one that allows the issue of gay marriage to have ANY viability. I don't need incest or dogs to defend it:

Defend marriage and gays got zip.

Synova said...

Matt, I think that a person could apply a slippery slope argument to a law that was passed by the majority... if you allow this thing, how hard will it be to allow the next thing?

But this is a judicial ruling.

It doesn't matter what you *think* about the subject of the ruling, or if it is accepted or not by the majority, because the claim is that it's a "right". And when that is the case the same argument has to be allowed to apply to other situations.

John has been saying that so long as we're talking about a "couple" then we have to offer the couple equal protection under the law.

Perhaps you can explain why something that is required by equal protection applies to one couple and not to another couple?

Palladian said...

"This whole discussion is as bullshit as that cartoon about university websites. 112 posts so far, here, of bullshit."

Well a hearty fuck you to you too!

jr565 said...

Matt wrote:
f you really think people will now make an argument for marrying their mom or their dog just see how far it gets in the courts. It won't get far. Anyone making the arguments full well knows this but they keep playing that card. Bizarre.

Leave out the morality of it. Is it not discriminatory to deny family members from marrying. Yes or no?
How is that different than denying blacks and whites from marrying? What makes an incestual relationship not a couple? Maybe we'll similarly look back and think our restrictions on marrying our cousins and brothers/sisters is similarly archaic. Other than the potentional for messed up genes, where is the issue?

And what about the idea of marrying more than two people? We already have whole cultures that practice that now, why restrict the practice here? Is there any basis to deny said marriages other than bigotry (ie limiting marriages to two people and two people alone). Clearly, restrictions marriage to only include couples and not trios is simply cultural bias, hence bigotry.

The Crack Emcee said...

And Matt, equating gays with blacks would be equally "insulting", if I was the type to get insulted.

wv: "craker" - figure it out.

Seven Machos said...

Matt's a hit-and-runner who will soon be crushed when a thoughtful court intervenes.

Seven Machos said...

equating gays with blacks would be equally "insulting"

It is hilarious, isn't it? This isn't exactly Montgomery in 1959 or the universal reality of human chattel some 200 years ago.

The Crack Emcee said...

Palladian,

Tell me how discussions of dogs or incest advances this conversation - the issue is whether or not marriage is real or what this no-fault nonsense made of it. if it is real, then what happened to the Mormons can be defended. If not, then it's all a farce with no rationality behind it what-so-ever.

Synova said...

Does anyone recall that silly movie where the two guys get married (I think that the one was trying to get custody of his kid or something, I don't remember) and they have to hide that they aren't gay and not having sex?

What possible difference could it *rationally* make if people are having sex?

Sure, it was a funny movie, but it was a funny movie because it was absurd.

James said...

If a court overturns a statute/ordinance/referendum that conservatives hate (i.e. gun control measures), on Constitutional grounds, that court is said to be upholding the Constitution.

If a court overturns a statute/ordinance/referendum that conservatives like (i.e. Anti-gay marriage, Arizona SB 1070), on Constitutional grounds, that court is said to be, as DBQ put it, "an unelected autocracy of elites who override the will of the people."

Lesson for us all - the will of the people trumps constitutional law, but only if the will of the people is conservative in nature.

The Crack Emcee said...

if marriage is real, gays have no argument.

Palladian said...

"ESPECIALLY IN THE STATE OF CALIFORNIA where civil unions have exactly the same state granted rights as marriages."

There should be no unions except civil unions. I ask again, why is the secular state defining the terms of a religious/romantic union?

"As a heterosexual man, I can, today, proclaim that I am a homosexual with nary a thought and no proof to the contrary and I would join a protected class. If I hang out long enough as a homosexual, I would probably find myself with a whole new class rights above and beyond those of mortal heterosexuals. I can't wait to enact my new status."

Congratulations on coming out! Now, suck my dick. You can't be a poof without proof, at least in my book.

So what are these "special rights" I always hear people whine about?

I'm not looking for "special rights", I'm looking for a fair, severely limited, secular and reasonable government that doesn't try to engineer my life for me, whether that's deciding which sex I can "marry" or whether I have health insurance or how much fleur de sel I put on my steak au poivre.

Seven Machos said...

Here's another rational basis for not extending government recognition to same-sex marriage: it's stupid to clog our already-clogged court system with gay divorces when the government has no stake in a gay marriage, given that there is no biological possibility of transferring property between generations.

Anthony! Pay attention here. This is judicial gold.

Seven Machos said...

I'm not looking for "special rights", I'm looking for a fair, severely limited, secular and reasonable government that doesn't try to engineer my life for me, whether that's deciding which sex I can "marry"

No one is telling anyone who they can marry. The state affords rights and responsibilities to heterosexual couples who get married because of the likelihood that children will result from the corporation.

El Pollo Real said...

Methadras wrote: I can't wait to enact my new status.

You don't even need to be gay to enjoy your newly found new rights. If you're single, under the law you can now marry another man tomorrow for whatever reason you choose, business or pleasure and become a state recognized entity! Win Win!

done deal.

James said...
This comment has been removed by the author.
Synova said...

Crack, what no-fault did was make it so that people could feel really good about themselves and their tolerance by giving away something entirely worthless.

Palladian said...

"What possible difference could it *rationally* make if people are having sex?"

Does the current absurd quasi-religious, State-run marriage racket require that married people have sex to be married? I though the cessation of sex was an inevitable result of marriage.

Another absurdity.

And Crack, I didn't mention incest nor dogs. Until now.

Seven Machos said...

if a court overrides the will of the people when the will appears to be liberal, you don't hear the same thing from these people

Examples?

Sofa King said...

Whither the political question doctrine?

The Crack Emcee said...

BTW - I'm not against gays marrying, but against living in a state (of being) that makes no sense. Where I sit, there is no such thing as "gay marriage" because marriage is already defined. There are also no "second marriages".

Unless you agree with that, you got no argument against this verdict.

shoutingthomas said...

Palladian:

This meddling in a religious/romantic/emotional issue makes as much sense as the State adjudicating the existence of God.

versus the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

I vote for the Declaration of Independence.

The hidden costs of the destruction of tradition cannot be measured. Those costs will be revealed over time.

James said...

Note: That previous comment of mine in no way means I disagree with the decisions in Heller and McDonald. I believe those two city ordinances were unconstitutional and rightly overturned.

I believe the court made the right decision on the Prop 8 case. As for SB 1070, I have mixed feelings and wouldn't say one way or another.

My point is just that, you see a whole lot of talk like DBQ's "an unelected autocracy of elites who override the will of the people " when a court overturns a conservative statute. But if a court overrides the will of the people when the will appears to be liberal, you don't hear the same thing from these people.

Seven Machos said...

Does the current absurd quasi-religious, State-run marriage racket require that married people have sex to be married?

You are simply refusing to admit that, from the state's perspective, children and their care and upbringing and their eventual receipt of property and wealth is the point of the thing.

Methadras said...

Palladian said...

There should be no unions except civil unions. I ask again, why is the secular state defining the terms of a religious/romantic union?


That just happened today. Marriage is now called anything you want it to be in California with this ruling. It's uniqueness is rendered moot.

Seven Machos said...

James -- You are arguing some vague principle with no concrete facts in reality.

James said...

Seven Machos

My main examples are the gun control ordinances of Chicago and Washington, DC, at issue in McDonald and Heller.

I believe these cases were decided correctly by the SC. But, these ordinances were "the will of the people" as they were enacted by the people's representatives in the legislature/city council. Yet, you don't hear conservatives talking about how the SC overruled the will of the people in those cases, the way they do when it's Arizona SB 1070 or Prop 8.

shoutingthomas said...

Palladian, your language always displays this latent fascism:

Congratulations on coming out! Now, suck my dick. You can't be a poof without proof, at least in my book.

When you're not trying to shock us with this childish nonsense, you're shrieking that butt fucking is the solution to all human problems, and that compulsory butt fucking should be enforced on people you don't like.

Do you know that torture chambers are often run by people who share your enthusiasms?

Krumhorn said...

While there was no discernible societal interest in a race qualification for marriage, Matt is trying to dismiss the 'slippery slope' argument by claiming its absurd to think that someone would assert the right to marry their dog or their mom.

However, imagine back in 1967 when Loving was decided if someone then tried to also assert the right of gays to marry.

The arguments for a rational state interest can just as easily be extended to goats and moms as they can gays. I have never been persuaded that sexual appetite comes anywhere near being justified as a protected class.

--Krumhorn

.....

Palladian said...

"No one is telling anyone who they can marry. The state affords rights and responsibilities to heterosexual couples who get married because of the likelihood that children will result from the corporation."

Bullshit. Althouse and Meade married with little possibility of further children. I know sterile people who have married. There is no requirement that married people produce offspring (as there was in the old days) and I don't consider "likelihood" a sufficient justification for irrational discrimination.

"You don't even need to be gay to enjoy your newly found new rights. If you're single, under the law you can now marry another man tomorrow for whatever reason you choose, business or pleasure and become a state recognized entity! Win Win!"

You can do that with a woman too. What's your point?

Do you see why the idea of the State determining the qualifications for marriage is absurd? What does the sex of the participants matter if we allow sterile, old or non-procreating people to marry? What is the point of the State making these silly and arbitrary decisions? If you don't "love" your spouse sufficiently should your civil marriage be revoked?

The ONLY rational thing is for the State to completely remove itself from the "marriage" issue altogether.

James said...

Seven

I know I'm arguing in vague terms here. I just think sometimes, some of the people here talk about, if I can use DBQ's quote again, "unelected autocracy of elites who override the will of the people" when it's a law they agree with, but if it's a law they disagree with, they correctly recognize the court's role in determining that constitutional law trumps the "will of the people" when the two conflict.

Even if we may have greatly differing views on what the Constitution allows, I think characterizing the decision as DBQ did is absolutely ridiculous.

Seven Machos said...

James -- The obvious difference is that the Second Amendment is easily identifiable and it says what it says. It's right there on the parchment.

This judge is using a judicial doctrine based on a few words in the Constitution which in themselves in no way address gayness or marriage. It's penumbras. It's derivative of something that's derivative of something that's derivative.

Synova said...

"Does the current absurd quasi-religious, State-run marriage racket require that married people have sex to be married? I though the cessation of sex was an inevitable result of marriage."

Heh. ;-)

I never did quite get that, though. A lack of consummation or refusing the marriage bed *used* to be basis for divorce or annulment back when there needed to be a "fault".

I don't think that anyone cares anymore and certainly it would be Very Bad to suggest that your spouse should feel obligated to satisfy sexual desire.

I only really brought it up at all because of the idea that the romantic relationship defines which couples must have that equal protection under the law. No one quite says that, but it seems heavily implied to me that the fact of being a "couple" is definitive.

It's really not for heterosexual marriage though. It could be a marriage of convenience and who would particularly think that was important? I doubt even immigration would care past a certain point.

Methadras said...

Palladian said...

Congratulations on coming out! Now, suck my dick. You can't be a poof without proof, at least in my book.


o rly? So this is how you are going to define your homosexuality by having me perform a sexual act on you that for so long other homosexuals have denied was the only distinction that defined them as homosexuals? So you are a base queer. Lowest common denominator and all that. I wonder if a government official in their official capacity to gauge the thoroughness of my homosexuality would ask me to prove it and by what means that would need to be manifested. Bravo.

Palladian said...

"You are simply refusing to admit that, from the state's perspective, children and their care and upbringing and their eventual receipt of property and wealth is the point of the thing."

The State doesn't even admit that! And, of course, non-heterosexual couples and even single people can have children. So your point is?

That your vaunted "tradition" is a failure and now you want to use the power of the State to enforce a meaningless dogmatic distinction.

I think there's a fascist under that tight Spandex mask!

shoutingthomas said...

Palladian, you are a master of lawyerly language.

The ONLY rational thing is for the State to completely remove itself from the "marriage" issue altogether.

I don't want my life run by lawyers. I don't want the government to be run by lawyers.

The ONLY sensible thing is for the voters to somehow take by the reins of government, and toss the lawyers out on their asses.

jr565 said...

Matt,
So long as a father or mother waits until their children are of age (or so long as brother and sister are of age) and they are a couple, can you think of any reason why the state should discriminate them?

Remember the ruling in this case: "Morality as determined by the majority of the citizens is insufficient grounds for public law."
One can make a moral case against incest, but we were just told that morality is insufficient grounds for public law.So what other basis would you, Matt, use to deny incestual couples the right to marry. What are you, some kind of bigot?

Seven Machos said...

Althouse and Meade married with little possibility of further children. I know sterile people who have married.

These people are hangers-on, fitting themselves into a category that exists for reasons that don't apply to them but which fit them. I have always been amused that Althouse and Meade got married and I imagine Althouse could write something really trenchant and provocative about it all and how it relates to gay marriage if she so chose. Meade, too, of course.

There is no requirement that married people produce offspring

No shit.

The Crack Emcee said...

O.K., you guys are going to insist on talking nonsense, so I'm gone.

Palladian said...

shoutingthomas, the word "marriage" does not appear in any of our founding documents.

«Oldest ‹Older   1 – 200 of 330   Newer› Newest»