No Good Argument Against Same-Sex Marriage, Take 3

In yesterday’s post about the DADT ruling and the relative winning streak gay equality has been on in the courts, the first commenter hit all the perfect buzzwords to demonstrate my claim that there are no good arguments against same-sex marriage. Our readers have made some excellent critiqued so far, and to some extent I am simply going to repeat them, but I wanted to highlight the weak arguments anti-equality people make. So congratulations, Mr. Kowal, you’ve been promoted to the front page.

Mr. Kowal writes:

I can’t see why a judge’s moral view about marriage should have any more or less weight with the people than anyone else’s,

Is this an inadvertent misreading of my post, or are you purposely mis-stating the issue? These judges have not relied on their moral view, but on the legal principle that personal moral views do not outweigh the 14th Amendment.

I find this part of the response the most outrageous, because Mr. Kowal is basically arguing that gay equality cannot possibly be seen as a matter of law, but only from a (presumably perverted) moral perspective. Not only has he denigrated the value of the law itself–because equality has long been a bedrock principle not just of law but of the very concept of law–but he has insulted every justice who disagrees with him on the issue, implying that they have abdicated their duty to judge issues as a matter of law.

It’s one thing to disagree with their interpretation of the law, but to say they’re not ruling based on law, but on personal morality, is a serious charge, as it is a claim of judicial misconduct. If he’s going to make such a charge, he should have some actual evidence, which of course he doesn’t.

“San Francisco lifetime apointed judge

You forgot “Republican-appointed” in your attempt to dishonestly spin the issue to make it about mere politics. Perhaps you’re not familiar with the Constitution, but all federal judges have lifetime appointments. The Framers of the Constitution purposefully designed it that way. If your beef is with lifetime appointments, you should be bitching about them. Did you know that Antonin Scalia is also a “lifetime appointed judge”? And he has voted against gay equality–should I be complaining because as lifetime appointed judge he shouldn’t get to make any decision on the issue? Or are “lifetime appointed judges” acceptable if, and only if, they rule in the way you want?

And your emphasis on the judge being from “San Francisco” judge is neither wholly true nor remotely relevant.

  1. Judge Walker was born in Illinois and went to college in Michigan. He’s a Midwesterner, born and bred, like me.
  2. And the case was heard in San Francisco because that’s where the Federal District Court, Northern California District, is located. The plaintiffs, who as American citizens have just as much right as you or me to take their case to the courts, live in that District and were denied marriage licenses in that District, so that District was where they were legally obligated to file.
  3. San Francisco is an American city, and citizens of San Francisco are U.S. citizens, so they just as much right as anyone else to be appointed to the federal judiciary! Your implication that somehow the decision is illegitimate because the judge sits on a court in San Francisco is nothing more than an attempt to delegitimate the citizenship of San Francisco Americans, to suggest that they ought not to be able to serve on the federal judiciary.
  4. The 7 Iowa Supreme Court justices who unanimously ruled that their state constitution’s equal protection clause required same-sex marriage are all from Iowa. Those Midwesterners came to exactly the same conclusion as the San Francisco judge, so quit pretending that it’s a “San Francisco liberal perverts” issue.

That no “private moral” view may ever form the basis for legislation would mean the end to all legislation concerning not only marriage, but adult incest, polygamy, obscenity, animal cruelty, prostitution, bestiality, etc.

Mr Kowal demonstrates the typical moralist’s incapacity to make moral distinctions, lumping prostitution, polygamy, and bestiality into the same category. Let’s sort this out by taking them separately.

  1. Animal cruelty and bestiality: These can be put together because both involve harm to animals. Can animals consent? No. Nor can they speak up for themselves. There is in fact serious philosophical debate about whether animals have or deserve rights, but there is little doubt that we can legitimately defend the defenseless against those who would harm them.
  2. Prostitution: Prostitution is often called a “victimless” crime, but that’s not precisely true. The spouse whose relationship with her spouse is built on a belief in fidelity can be harmed by prostitution. And if we’re not willing to allow such psychological as a standard, there’s the issue of sexually transmitted diseases that affect innocent third parties.
  3. Adult Incest: Incest creates a very high risk of severe birth defects passed onto a child–harm to a third party again. (But if the adults are incapable of reproducing, then what business is it of yours or mine if they engage in incest.)
  4. Polygamy: The Bible says that David had eight wives and was a man after God’s own heart. It’s a bit late in the game for Christians to make a serious claim that polygamy is inherently immoral. But anyway, if all parties to the plural marriage are adults, have joined voluntarily, and are not doing it as a welfare scam, why is it any of your business or mine?

What we see here, once again, is that the chief desire of the moralists is to control other people’s behavior; to make others conform to the moralist’s standard even when no one is being harmed in any way.

As I have implored Jason Kuznicki here and here, I would likewise ask you: if the people are not sovereign over the courts in matters such as marriage, what of their sovereignty is left? Jason’s answer was less than comforting: the “checks on the judiciary” that one would expect to learn in a “high school civics lesson.” Which I take to mean, “advice and consent,” the power of the purse, and “court packing.”… If you have a more satisfying answer to the judicial activism problem, then perhaps the rest of us can take a bit less umbrage at the courts’ recent railroading of the right to self-governance and the right to define, create, and perpetuate our social institutions.

So you’re not satisfied with the Constitution’s system of checks and balances? You think the Founders didn’t create enough checks on the judiciary? And you ask me to give you a “more satisfying” answer?

No. If you’re not satisfied with the Constitutional system then you can advocate changes to it, but I’m sure as hell not going to try to give you any answer that “satisfies” you that the public actually can control the judiciary enough to prevent them from protecting constitutional rights!

You have no understanding of how our system really works. Self-governance does not mean the right to pass any laws we want, but the right to pass any laws that are consistent with the Constitution, and the right to change that Constitution. But it absolutely does not mean the right to pass laws that violate that Constitution.

And in a system like that, somebody has to be given the final authority to determine whether laws violate the Constitution or not. And in our system, that final authority is the Courts.

The answer when we don’t like the Courts’ rulings is not to undermine their authority to make final determinations, because then you will have absolutely destroyed the rule of law in America! Can you not see that allowing the majority to overrule the courts means the majority can completely negate the constraints the Constitution places on them?

The Framers purposely gave the federal judiciary independence, precisely to protect them from the political pressure that you want to put on them. In pleading for a way to tighten the leash on them, you are attacking the Constitution, you are attacking the rule of law, you are mocking the Framers’ wisdom, and you are attacking the very foundations of the American political system.

And yet you think same-sex marriage is the big threat? No–the threat is from those of you who are so adamantly opposed to same-sex marriage that you would fundamentally alter the basic foundations of the American system to deny it.

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About J@m3z Aitch

J@m3z Aitch is a two-bit college professor who'd rather be canoeing.
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70 Responses to No Good Argument Against Same-Sex Marriage, Take 3

  1. Matty says:

    Since I agree with the main arguments of this post forgive me if I riff off some of your supporting points.

    # Animal cruelty and bestiality: I cannot access the blog at the moment but I seem to recall a good piece by Skatje Myers a few years back arguing in effect that there is no need for seperate bestiality laws because if someone is harming animals whether they are turned on by the act is irrelevant and if they are not, the example given is letting a dog sniff your crotch for longer than most people would then the yuck factor is not sufficient reason for a law.
    # Prostitution: These are arguments against infidelity and unprotected promiscous sex, not against recieving payment in return for sex as such. It can also be argued that, as with drugs, criminalisation causes more problems than it solves by pushing the trade underground where violence is more likely.
    # Adult Incest: As you note this is only an issue of third party harm where children are produced. I have no problem with such a standard but it does trouble me that we may be inconsistent in only targetting inbreeding as a source of birth defects, why no bans on marriage for those exposed to high levels of radiation? I also so wonder how close is too close, should Charles and Emma Darwin have been banned from marrying?

  2. Scott Hanley says:

    Most people understand that freedom doesn’t mean the individual can do anything he wants, particularly if they want to harm others. By the same lights, democracy doesn’t mean that the people can do anything they want, particularly if they want to harm others. The framers viewed unlimited democracy as equivalent to anarchy and, in fact, the Constitution was purposely designed to limit democracy. The boundaries aren’t always clear, but to the question of “Can’t the people do whatever they want?” the answer is “No, they can’t. That’s what a constitutional system means.”

  3. Tim Kowal says:

    Forgive me, but there does seem to be a lot of smoke here. I do want to address a few of your arguments, which I will below, but there is a lot of hay made of things that are tangentially relevant at best (such as Judge Walker’s geo-positioning, whether I disagree with Scalia’s lifetime tenure, etc.). And it’s always disappointing when these discussions are made personal. I offer a general objection, but I won’t specifically respond to the invectives in the post.

    With respect to the “consent” issue concerning animal cruelty, bestiality, etc., one of your readers raised the same argument in your last post, which I responded to here. In short, libertarians’ attempt to comport their renunciation of moral legislation with the legitimacy of animal cruelty laws is strained at best.

    The argument justifying laws against prostitution strikes me as a bit odd. Don’t get me wrong, I’m in favor of such laws. But then, I’m a conservative, and believe in the traditional right to self-government that permits the people to enforce their moral views and protect their social institutions. I feel like I need a bit more to feel satisfied that a libertarian view can support infringements on personal liberty for the mere reason of preventing harm to a potential breach of the “belief in fidelity.” Is such a belief the sort that can be protected through the laws, in a libertarian construct?

    As for adult incest, if one rejects the argument that procreation is no basis to prevent homosexual intercourse or same-sex marriages, then how can it be the basis to prevent incestuous intercourse or marriages?

    The argument in the post concerning polygamy is a nonstarter: there’s no mileage to be gotten from trying to convince people that they don’t, in fact, believe polygamy is immoral. And, of course, you concede my point when you ask “why is it any of your business or mine” whether people want to engage in plural marriages? Indeed, the principle that would force the people to recognize same-sex marriage would also force them to recognize plural marriages. The problem is, same-sex marriage advocates are near victory in winning Americans’ opinion on that front; they are certainly not so close with polygamy, and in fact may lose much ground if Americans understood that they can’t have one without the other under a libertarian construct, or if the issue is foisted upon us through the courts.

    Finally, as to my question about the limits of judicial review, your post is unresponsive. I cannot discern from your repeated accusations that I, personally, am attacking the Founders, the Constitution, and the rule of law, what you might possibly believe could limit judges from overturning any law they felt might be out of step with the “full implications of justice.” The independent judiciary was and is a grand idea, part of the genius of the Framers. But only to the extent they continue to recognize we have a written constitution that reflects the will, purposes, and understanding of the people, who are the sovereign. An independent judiciary, yes, but not an independent set of constitutional doctrines. That would render the judiciary more than independent—it would render it supreme.

  4. Heidegger says:

    Mr. Kowal, –This is a most impressive bullseye! Very, very elegant. Would you be interested in filling the next open seat in the United States Supreme Court?

    “The independent judiciary was and is a grand idea, part of the genius of the Framers. But only to the extent they continue to recognize we have a written constitution that reflects the will, purposes, and understanding of the people, who are the sovereign. An independent judiciary, yes, but not an independent set of constitutional doctrines. That would render the judiciary more than independent—it would render it supreme.”

  5. Chris says:

    Tim’s argument seems to consist of two claims: 1) it’s judicial activism if I disagree with it, and 2) gay marriage isn’t bad, but a lot of other types of relationships are, and if we allow the non-bad thing, what’s to stop us from allowing the bad things?

    The former is obviously stupid, and the latter, aside from involving the shameless use of an actual logical fallacy, gives away the game. If the other things are bad, there will be grounds to exclude them, but the contrast itself shows that there is no good reason to exclude gays from marriage.

    By the way, if private morality is sufficient to outlaw something, as Tim implies, what else should we be outlawing?

  6. James K says:

    Tim Kowal:

    The independent judiciary was and is a grand idea, part of the genius of the Framers. But only to the extent they continue to recognize we have a written constitution that reflects the will, purposes, and understanding of the people, who are the sovereign.

    First, let me riff of Margaret Thatcher: There’s no such thing as The People, only people. People are very diverse, and disagree strenuously on what counts as moral. This is the trouble with relying on purely moral justifications for policies; if you can point to someone’s rights being violated then you can say “don’t do this, because you’re hurting X”, but without that, we’re on very shaky ground. I happen to think it’s morally dubious to raise a child into a specific religious tradition because you’re inculcating a cognitively vulnerable person with some empirically unjustified beliefs. But I can’t say that anyone’s rights are being violated (I don’t have a right to feel comfortable about everything kids are taught), so I wouldn’t support a hypothetical (and extremely unlikely) law to ban Sunday School even if I thought it was in some sense well-intended.

    Second, in the United States “the people” are not sovereign, the Constitution is Sovereign. And one part of the Constitution say no branch of government can deprive people of privileges or immunities without due process of law (I’m paraphrasing, but you get the idea). Now naturally there’s some scope for interpretation as to what “privileges or immunities” actually are, but getting married to someone you love sounds like it fits the bill. And if a law violates the Constitution it doesn’t matter how many people support it, the law is illegal and must be struck down. If “the people” don’t like it, they can agitate for an amendment or suck it up.

    I actually agree with you that your courts make free with the Constitution too much, but this takes the form of overstating what the government may do (see State Secrets, Eminent Domain and the Commerce Clause). The whole point of the Constitution was to keep a lid on what government could do, to stop it violating people’s rights and that includes giving out legal benefits like marriage on a discriminatory basis.

    Now if government were to stop handing out a range of benefits to married couples it would no longer have need of a legal definition of marriage. At that point the whole question would be moot, and the court cases would cease. I’m game if you are.

  7. James Hanley says:

    Mr. Kowal responds:

    there is a lot of hay made of things that are tangentially relevant at best (such as Judge Walker’s geo-positioning, whether I disagree with Scalia’s lifetime tenure, etc.).

    If they’re tangential at best, why did you bring them up? For pete’s sake, you’re the one who made an issue of Judge Walker’s lifetime tenure and San Francisco residency, and I’m the one who said they were irrelevant, so it’s a bit much for you to lecture me about irrelevancies. You made it an issue–don’t pretend you didn’t.

    I feel like I need a bit more to feel satisfied that a libertarian view can support infringements on personal liberty for the mere reason of preventing harm to a potential breach of the “belief in fidelity.”

    “Preventing harm to a potential breach of belief?” I can’t even parse that. But I am not talking about harm to something hypothetical or abstract–I am talking about harm to a third party, an innocent person. If you want to make a reasonable argument against my point about prostitution, copy Matty’s comment.

    The argument in the post concerning polygamy is a nonstarter: there’s no mileage to be gotten from trying to convince people that they don’t, in fact, believe polygamy is immoral.

    So you reject the Bible? Or at least the OT? Anyway, I’m not trying t9o persuade people they don’t believe polygamy is immoral–I’m just mocking them for failing to condemn their hero, King David.

    of course, you concede my point when you ask “why is it any of your business or mine” whether people want to engage in plural marriages? Indeed, the principle that would force the people to recognize same-sex marriage would also force them to recognize plural marriages.

    It doesn’t concede your point at all. If you had read more closely, you’d see that I don’t care if we allow plural marriage. As a matter of law, there’s doubt that the courts would extend it as you say. It’s certainly very far from inevitable. But if they did, I wouldn’t object, because other people’s living arrangements are none of my business. So I’ve conceded nothing to you.

    I’ll deal with your last paragraph separately.

  8. Heidegger says:

    Whoa Chris, wait a minute here. He’s not saying that at all. What he is saying, regarding point #2 of your comment, is that if the same rationale and logic used to make SSM legal is applied to polygamy and incestuous marriage, how could they not recognized as well? Hey, the majority does not have the right to restrict the rights of the minority, right? Alias? This is an outrage!! The monsters in this institution worship upon the altar of St. Haldol! Alias…Warum ist überhaupt Seiendes und nicht vielmehr Nichts?

  9. James Hanley says:

    Mr. Kowal on the judiciary:

    Finally, as to my question about the limits of judicial review, your post is unresponsive. I cannot discern from your repeated accusations that I, personally, am attacking the Founders, the Constitution, and the rule of law, what you might possibly believe could limit judges from overturning any law they felt might be out of step with the “full implications of justice.”

    Constitutionally, there is nothing to limit them. The Framers didn’t include such a mechanism. I don’t know why that’s so hard for you to grasp. You keep demanding to be told about something that simply doesn’t exist. That’s why I say you don’t understand our system, and that your fight is with the Framers.

    But there are some extra-constitutional elements to consider. One is that the Court is notoriously inept at starting social revolutions. Read Gerald Rosenberg’s book, The Hollow Hope: Can Courts Bring About Social Change. The second is that members of the judiciary are almost unanimously thoroughly encultured into the legal mindset, from law school through their entire career. They do not have a habit of just making decisions based on personal moral beliefs instead of the law.

    The independent judiciary was and is a grand idea, part of the genius of the Framers. But only to the extent they continue to recognize we have a written constitution that reflects the will, purposes, and understanding of the people, who are the sovereign.

    You’re confusing the will of the people as reflected in the Constitution with the will of the people as reflected in statutes.

    So how do we–in the American system–determine what “the will, purposes and understanding of the people” “as reflected in the Constitution” are? We gave that task to the judiciary! In fact giving that job to the judiciary is the will and purpose of the people as reflected in the Constitution, because the judiciary is a constitutionally created branch of government.

    An independent judiciary, yes, but not an independent set of constitutional doctrines. That would render the judiciary more than independent—it would render it supreme.

    Independent set of constitutional doctrines? Independent from whom? From you? You’re presupposing a “correct” set of constitutional doctrines separate from those held by the judiciary, presumably the ones that “really” reflect the will, purpose and understanding of the people. But just how in the world do you propose to determine what that “real” understanding is? You can’t simply claim that it’s the one you hold. And you can’t say it’s the one that a majority of the people hold right now, because then you’re making the Constitution dependent on simple majority referendum. If you’ll read Madison’s Federalist 10, you’ll see that the Constitution is designed to limit the power of simple majorities. So once again, your argument about our constitutional structure is with the Framers. They didn’t agree with you on how easy it should be for the majority to determine what was legitimate and not.

    So how do we, traditionally–historically–determine what the “real” intent of the Constitution is? Through lots of public debate that ultimately receives its final expression in the rulings of the Supreme Court. The words of Supreme Court Justice Robert H. Jackson are words you should ponder:

    We are not final because we are infallible, but we are infallible only because we are final.

    You want a recourse to reverse the Court that is short of constitutional amendment, a recourse that would prove Jackson wrong by making the Court less than final. That’s just too damned bad, because the Framers didn’t give us one.

  10. James Hanley says:

    Heidegger,

    How do you propose to determine the will of the people as expressed in the Constitution except through an independent judiciary?

    You and Mr. Kowal seem to have some vision of an independent judiciary that is controlled by the public, which is an oxymoron. Or you have an idea of an independent judiciary that doesn’t disagree with your own interpretations which suggests tremendous hubris. (Because you couldn’t possibly interpret the Constitution wrongly, could you? It must mean what you think it means, right?)

    The only way to get the control over the judiciary that you want is to destroy judicial independence, and you clearly haven’t thought through the consequences of that. You praise it as a “grand idea,” but you get really upset when that grand idea doesn’t lead to your favored result. So while you may like the idea as an abstract non-effective ideal, you don’t actually like its real effective existence.

  11. James Hanley says:

    Hey, the majority does not have the right to restrict the rights of the minority, right?

    That’s right. Not without a damn good reason, or as the Courts put it, a “compelling state interest.”. Are you actually arguing for allowing the majority to restrict the rights of minorities just because the majority wants to, without a compelling interest?

    Is there a compelling state interest in banning incest? If so, then the state can ban it.

    Is there a compelling state interest in banning polygamy? If so, then the state can ban it.

    But as I’ve said many times now, there are no good arguments against same-sex marriage, which means there is no compelling state interest in preventing it. And neither you, Mr. Heidegger, nor Mr. Koval, has made even the most minimal effort to demonstrate such an interest. You have just fallen back on “majority rule, majority rule, majority rule,” while failing to recognize the significant limitations the Constitution places on majority rule.

    As to the extension of the logic of same-sex marriage to polygamy and incest: I argued that if no one is being harmed, then there’s no reason to ban it. Are you claiming that no one is harmed by incest or polygamy? If no one is harmed, why do you feel the need to ban it? But if those are in fact different from same-sex marriage and someone is harmed, then the logic of allowing SSM does not extend to those things.

    And the claim that there’s no argument against polygamy or incest if we accept SSM is blatantly dishonest, because the same people making that claim now are the people who will be busy devising just such arguments after SSM is legal, so that they can battle any potentially forthcoming claims to such rights. Since they will, indisputably, make such arguments then, it would behoove them to have a little honesty now and not make the claim that no such arguments will exist.

  12. Tim Kowal says:

    Despite my explanations to the contrary, you continue to mischaracterize my position as rejecting an independent judiciary. It is undeniable that a pure democracy is untenable and not what the Founders designed.

    But I vigorously disagree with your interpretation of an “independent judiciary” as a judiciary that need not even pretend to fidelity to the Constitution as it was written. Thus, when you say that “Constitutionally, there is nothing to limit them [the courts],” this would be troubling in the extreme, if I believed that you actually meant that. But surely you don’t. Perhaps you mean that there is little that can be done about a “bad” judicial opinion. That much is true.

    But there are indeed limits to the Court’s power, identified in the Constitution itself in the first words of Article III: “The judicial Power of the United States, shall be vested in one supreme Court….” While the bounds of what “judicial” power looks like are not further articulated in the Constitution, there exists a long tradition of what it means for judges to interpret and expound law. When we accuse a court of “legislating from the bench,” we mean that it is not acting like a court at all, as courts are vested only with “judicial” power, not legislative power.

    In other words, it means something different for a court to adjudicate cases than for legislatures to make law.

    So my question, then, is quite simple: What, in your opinion, is the appropriate, legitimate methodology for a court to use in exercising its “judicial power”? For my part, originalism is the only legitimate and practicable methodology, because it comports with the idea of an “independent” judiciary while keeping the Court’s power constrained by forcing it to provide an explanation, “right reason,” how the holding comports with the original public meaning and purpose of those who enacted the laws the Court means to interpret and expound. There are certainly other methodologies available. Are there any that have any meaningful chance of keeping courts accountable, that insist the courts acknowledge their counter-majoritarian function is a limited one?

  13. Tim Kowal says:

    As I mentioned before (I think in the comments to the DADT post), the “strict scrutiny” standard that requires a “compelling government interest” applies to racial classifications. Sexual orientation gets no special consideration under the Constitution. Incest certainly doesn’t.

  14. James Hanley says:

    But I vigorously disagree with your interpretation of an “independent judiciary” as a judiciary that need not even pretend to fidelity to the Constitution as it was written.

    Mr. Kowal, you are now just writing pure unadulterated lying bullshit that is a slander of Judge Walker. While a reasonable person could disagree with the Judge’s interpretation of the Constitution, only a liar would accuse him of “not even pretending fidelity” to it.

    Mr. Kowal, I have both studied and taught Constitutional Law. I have read Judge Walker’s decision. It is explicitly based in an interpretation of the 14th Amendment’s Due Process and Equal Protection clauses, and builds directly on Supreme Court precedents.

    So on what basis do you claim that Judge Walker “didn’t even pretend fidelity” to the Constitution?

    Thus, when you say that “Constitutionally, there is nothing to limit them [the courts],” this would be troubling in the extreme, if I believed that you actually meant that. But surely you don’t. Perhaps you mean that there is little that can be done about a “bad” judicial opinion. That much is true.

    There are no constitutional mechanisms for the people to directly check the courts, regardless of the correctness or incorrectness of the courts’ decision.

    Yes, the courts are bound by the Constitution. You haven’t yet presented any evidence that the judge made a decision that wasn’t bound by the Constitution, so you have not given any evidence that your complaint has any basis in fact.

    there exists a long tradition of what it means for judges to interpret and expound law.

    Yes, and that long tradition includes striking down laws passed by the people and their representatives. It includes interpreting the 14th Amendment’s Equal Protection clause to protect the rights of minorities. You still have failed to present an argument that Judge Walker did anything outside that tradition.

    What, in your opinion, is the appropriate, legitimate methodology for a court to use in exercising its “judicial power”? For my part, originalism is the only legitimate and practicable methodology,

    Originalism is a deeply flawed method of interpretation that does not fulfill its purpose of limiting justices to the “correct” interpretation.

    There is, and can be, no single original understanding of any constitutional clause because there were so many people involved in drafting and approving it, and their understandings were as individual and differing as the people were. Originalists like Justice Scalia famously pick and choose the ones that suit them, and wholly ignore the original meaning whenever it doesn’t.

    Only people without much training in historical methodology believe in originalism, and trained historians laugh their asses off at Justice Scalia’s pathetically amateurish attempts at historical interpretation.

    I believe–as a political scientist who has closely studied the Constitution and the founding era events that led to it–that the purpose of the Constitution was to create a stable government that would keep the union together, while limiting the rights of the people only as much as necessary to achieve that end. This calls for a reading that is very constraining of government’s legislative authority–particularly its ability to give special favoritism to some that it denies to others–and maximizes the rights of individuals.

  15. James Hanley says:

    , the “strict scrutiny” standard that requires a “compelling government interest” applies to racial classifications.

    Not just racial classifications. It applies to fundamental rights, to discrete groups that have traditionally been oppressed, and to classifications that are based on immutable characteristics.

    Sexual orientation gets no special consideration under the Constitution. Incest certainly doesn’t.

    Judge Walker says it does. He knows much more about the Constitution and its interpretation than you do. Homosexuality is an immutable characteristic, there has traditionally been discrimination against homosexuals, and marriage is a fundamental right.

    Granted, the Supreme Court has yet to rule this way. But they haven’t ruled against it, either.

    By the way, I am very seriously angry at your lie about Judge Walker “not even pretending fidelity to the Constitution.” If you want to argue about the issue with me, that’s fine, but you’re going to avoid such egregious falsehoods or the discussion will be over. I’m not going to come over to your blog and write such vicious falsehoods, and I expect you to refrain from it here, too. You can, with decency, disagree with Walker’s constitutional interpretation, but there’s no decency at all in pretending it’s not based on an interpretation of the Constitution and of precedent.

  16. James Hanley says:

    Regarding originalism: Is there anything in the Constitution that requires originalism as the interpretive method? If not, then you can’t claim that it is the only legitimate method (you haven’t explicitly claimed that, but I know some advocates of originalism do).

    To make my position clear, because nothing in the Constitution tells us what method we have to use to interpret the Constitution, many methods are legitimate. Even in the writings originalists like to lean on, such as the Federalist Papers, there is no claim that originalism is the proper method. And certainly the Federalist Papers make no claim that future generations ought to rely on them as heavily as originalists (and I!) do.

    So I’m not claiming originalism is illegitimate. I just think it’s flawed because it provides too limited an understanding of the Constitution, by focusing on how they–at that time–would have understood an individual clause and consistently failing to consider the overall purpose of the Constitution.

    It’s impossible to imagine going back to 1868 and find supporters of the 14th Amendment who thought it would apply to same-sex marriage. But it’s not so hard to imagine bringing that person to the present and having them agree that the principle of equality is not constrained to the limited vision they had back then.

    So I don’t understand why originalism focuses on narrow (past) application rather than broad principles. Or, actually, I think I do. Originalism is attractive to those who want to restrict individual liberty because it’s a method that gets them to their preferred outcome.

  17. Tim Kowal says:

    Well, I’m sure I don’t know how we got to this unhappy place. Sir, I did not connect that statement with Judge Walker. Instead, as I indicated, I was perplexed by your suggestion that judges need not pretend fidelity to the constitution to qualify as a legitimate exercise of their power. I did not suggest any judge had in fact gone to such a level; I only insisted that there must be some principle that would provide some grounds for objection in such an event.

    I do appreciate the discussion, but confess I fail to understand the anger it’s stirred up.

  18. Tim Kowal says:

    Though I don’t presently regard myself as up to the challenge of making a thorough defense of originalism, I do appreciate the chance to discuss some of the points you raised.

    We both know there’s nothing “in” the Constitution that requires a particular interpretive method. But then, there’s nothing “in” the Constitution that gives the Court the power to declare laws unconstitutional. The word “unconstitutional” never appears in the Constitution. These sorts of things are made up to some extent, of course. But we have to account for them in sound reason and with an understanding of what it means to interpret a “constitution,” what it means to exercise the judicial function in a democratic republic with a unique federalist model of split sovereignty, with counter-majoritarian protections yet a guarantee of self-rule, etc.

    Here is a very crude idea of how, in my view, Constitutional case law that “goes beyond” the text can pretend to be legitimate. Our Constitution was designed for the purposes of achieving a secure, ordered liberty to help perpetuate the existence and prosperity of the states, in turn founded upon the principle of self-rule and civic virtue. To prevent a decline into “mob rule,” counter-majoritarian measures were adopted into the Constitution. (Leave aside, for purposes of this crude outline, the differences in pre- and post-Civil War America, e.g., the models of Constitutional scrutiny and the shift of state power to the federal government.) While the people wished to avoid mob-ocracy, they certainly did not desire to trade it for aristocracy. Thus, while the Court was set up to be independent, it could not be said that the Court could act faithfully according to the purposes for which it was established in the Constitution if it purported to go too far afield of the text of that Constitution, which provided the only evidence of its instructions of the sovereign whom it served.

    But neither could the Court fulfill its counter-majoritarian function if it simply bowed to the present will of the people. Equally unacceptable would be an overly narrow view of the text as extending only to, say, what those who ratified the amendments intended by them. In this regard, perhaps the Fourteenth Amendment would only apply to blacks, because they were the direct beneficiaries of that Constitutional language in 1868? Surely not. While the ratifiers had blacks in mind when they enacted the words “life, liberty, or property,” and “equal protection,” they certainly meant these as ideals that extended beyond blacks, and beyond those Americans then living.

    But then we’re back to the first problem: How does the Court extend these abstract principles without becoming an aristocracy? The answer goes back to the purposes for which the Constitution, and its servant, the Court, were established: to maintain a secure, ordered liberty, with proper respect for the people’s right to democratic self-rule. In consideration of these “prime directives” that the Court must all equally respect, it should become clear that the Court cannot extend the “liberty” principle or the “equality” principle, for example, without stamping out completely the right to democratic self-rule. Indeed, as I briefly discussed here, our republic could not long last if the people’s right to govern themselves was stripped away. True, this will mean that some infringements on liberty must be tolerated. No one has ever pretended that ours is a perfect system of government, and most sober minded folks would concede that no such system exists anyway.

    Thus, the question is, would the regular exercise of self-rule, which frequently (if not by definition) infringes on some “liberty,” “property,” or “equality” interest, endanger the perpetuation of the republic? In the case of racial distinctions, quite possibly. Thus, the “strict scrutiny” doctrine. In the case of same sex marriage? Seems highly unlikely. Thus, deference to the regular perpetuation of self-government must be given, even despite the fact that the abstract notion of “justice” might command a different result.

    Justice is indeed an important ideal, one that judges certainly ought to keep in mind. But a government cannot perpetuate on justice alone. It requires the consent of its governed, and it requires laws which command their respect. Alas, there is not a perfect correlation between citizens and just laws. Again, sometimes injustices are too severe to be tolerated because they would endanger the integrity of the entire system of governance. But this is quite a high standard to meet. The important reality that judges too often neglect, in my opinion, is that they do not serve Justice herself as if she were another litigant before the court. Judges serve the sovereign people. To serve abstract principles, however noble they may be, is an ultra vires act.

  19. Tim Kowal says:

    I should note that I do not contend that “Justice” in the abstract requires the repeal of Prop 8. It should be clear that my comments here have dealt only with jurisprudence, not the moral or secular benefits or detriments of marriage and same-sex marriage. Those, perhaps, may be the subject of another energetic discussion!

  20. James Hanley says:

    I was perplexed by your suggestion that judges need not pretend fidelity to the constitution to qualify as a legitimate exercise of their power.

    But I never said that. If I misunderstood you to be intending a slam at Judge Walker, I apologize. But I don’t remotely understand how you could interpret my argument as saying judges can legitimately ignore the Constitution. It sounds precisely like the kind of lie that conservatives repeatedly level at anyone who disagrees with their interpretation of the Constitution. The interpretation is either what the conservative wants, or it completely ignores the Constitution.

    I’d like to think you’re not the type of conservative who makes such claims, but so far you seem to be.

    Besides, I always get pissed off at people who cavalierly argue for depriving other people of rights they themselves enjoy. In a nutshell, what you are arguing for is to have the Constitution enshrine your right to legislate your particular bigotry into law. Everything else around that is just window dressing designed to obscure that core truth.

  21. Pingback: Tweets that mention No Good Argument Against Same-Sex Marriage, Take 3 | The One Best Way -- Topsy.com

  22. Tim Kowal says:

    Perhaps we misunderstood each other, then. At any rate, what gave me the idea that you said that is when you said:

    Constitutionally, there is nothing to limit [judges from overturning any law they felt might be out of step with the “full implications of justice.”] The Framers didn’t include such a mechanism. I don’t know why that’s so hard for you to grasp. You keep demanding to be told about something that simply doesn’t exist. That’s why I say you don’t understand our system, and that your fight is with the Framers.

    But I’m happy to take you at face value that I misinterpreted you. (In fact, I even acknowledged that “surely you don’t” mean that.)

    Believe it or not, I can understand why you would get angry at people who would deprive others’ rights through the government. It was not my intent or purpose in engaging the discussion here to advocate “on the merits” of Prop 8. I am simply arguing the jurisprudence of the thing, which I find altogether more intriguing. And on those narrow grounds, I usually hold out hope that the discussion might not get too heated, if only so that I might not be unwelcome to engage future such discussions.

  23. James Hanley says:

    But a government cannot perpetuate on justice alone. It requires the consent of its governed, and it requires laws which command their respect

    You do realize that Brown v. Board of Education engendered violent opposition, right? That in the south there was absolutely no consent from whites, and that they used every means at their disposal, including mob violence, to undermine that legal decision?

    By contrast, all that has happened in response to courts ruling in favor of same-sex marriage is wailing and gnashing of teeth about the “end of civilization.” So by comparison, there is far more consent to the same-sex marriage decisions than there was to Brown. But you agree that Brown was right, despite the non-consent, do you not?

    the question is, would the regular exercise of self-rule, which frequently (if not by definition) infringes on some “liberty,” “property,” or “equality” interest, endanger the perpetuation of the republic?

    That is not the primary question. There is no doubt at all that we could perpetuate, long term, a republic in which the majority exercised self-rule and regularly infringed on the liberty interests of the minority. The question is, would that be a republic worth defending and keeping? It’s all very easy to be comfortable with that when you’re in the majority. You and I are both white, educated males, yes? Such a republic might work very well for you and me. But you show an appalling callousness toward those who won’t benefit from living in such a republic.

    judges too often neglect, in my opinion, is that they do not serve Justice herself as if she were another litigant before the court. Judges serve the sovereign people. To serve abstract principles, however noble they may be, is an ultra vires act.

    Are you seriously claiming that it is beyond the authority of judges to try to serve justice? You are indeed a conservative. While justice is certainly not synymous with law, you are dead wrong in your claim here. Judges serve the Constitution, and the principles embodied in it. They do not serve the sovereign people, because the sovereign people can violate the Constitution, and the judges must defend it.

    Taken seriously, your argument here would have judges saying, “This law is unjust and violates constitutional principles, but serving justice is outside my jurisdiction. My duty is to the people, and they have enacted this law, so it must stand despite violating the Constitution.”

    We both know there’s nothing “in” the Constitution that requires a particular interpretive method. But then, there’s nothing “in” the Constitution that gives the Court the power to declare laws unconstitutional.

    What a ridiculous false equivalency. It was well understood, by both federalists and anti-federalists, before the Constitution was approved, that the Court would have the power of judicial review. The very notion of a constitution that has any substantive meaning requires judicial review.

    However there was no such general understanding that the method of review would be originalism, and such a method is not a logical requirement stemming from the very notion of a constitution.

    In the end, your arguments seemed to be based on the idea that the Constitution couldn’t possibly mean what Judge Walker said it meant, so it couldn’t just be a legitimate disagreement about interpretation, but that he just be acting illegitimately, seeking a justice that he doesn’t have authority to seek, and violating some sacred principle of self-governance. So far you have not seemed to recognize that, even if he is in error, Walker’s argument is the straightforward one that this particular law is in violation of this particular constitutional amendment, and so just as much beyond the public’s self-governance authority as laws restricting freedom of speech.

    Argue against him on legal grounds, by all means, but stop this dishonest pretense that his decision is not a legitimate exercise of his authority to interpret the Constitution.

  24. James Hanley says:

    I specifically mentioned a constitutional “mechanism” for “the people” to control the judges, which was specifically what you asked for. A judge’s duty to abide by the Constitution is not a mechanism to keep them to their duty, it is their duty. So it’s neither a mechanism nor is it something the people can exercise. You took my “no mechanism” to mean “no duty,” which is a ridiculous leap of logic

    I am simply arguing the jurisprudence of the thing

    No, you are not. You actually haven’t argued any jurisprudence yet. You’ve claimed that the decision is outside the scope of, and not based on, jurisprudence. I’d be delighted to see an actual jurisprudential argument from you.

  25. Heidegger says:

    Professor Hanley, man, you are ruthless! Hammer, hammer, hammer. I pity the poor student who disagrees with you on SSM or any other subject you feel strongly about You have already expressed your opinion that there is no room for debate on this subject and that in fact, anyone who disagrees with you on this position is a homophobe bigot. This was in reaction to the Krauthammer column who had the temerity to say, well, that anyone who disagreed with the court decision in support of SSM was a….bigot! Central point of his column being, that the last refuge of a liberal losing in the court of public opinion is to accuse the opposition as being…. “bigoted”. I would think redefining 5,000 year old institutions at the very least, should require some reflection and serious thought and to do so hardly indicates any bigotry. Mr. Kowal was hardly deserving of your hatchet job-he could not have been more polite and gracious in his responses to your maniacally aggressive line of questioning and commenting.

  26. James K says:

    Heidegger:

    I would think redefining 5,000 year old institutions at the very least, should require some reflection and serious thought and to do so hardly indicates any bigotry.

    If you’re going to claim marriage is a 5,000 year old institution you need to count forms of marriage that include polygamy, arrangements where the wife is effectively a chattel slave to the husband and … same sex marriages.

    In fact the kind of marriage most people think of as “marriage” (government sanctioned, spouses as equals with their own legal agency, relatively easy divorce) is actually much more recent, more like 100 years old. Face it, Heidegger marriage is constantly being redefined. In a sense what’s happening now is just rectifying a mistake made when the early Christians took over the Roman Empire (before they ran it into the ground).

  27. Michael Enquist says:

    JK,

    No kidding. This “marriage is a 5K year old institution” argument is always made by folks who really want to say, “I want to believe that my kind of marriage is the only one ever practiced in the world, at any time, ever.”

    Neither Heidegger nor Mr. Kowal has addressed Hanely’s reminder of the polygamy of OT heroes. Not that they must at all, but they surely must if they are going to claim that marriage of, say, Shubhaksh and Parvati, is the only or even the main tradition in human culture.

  28. buddyglass says:

    In general I agree with you. Haven’t read this thread’s comments yet, but here are some things that leap out at me:

    # Prostitution: Prostitution is often called a “victimless” crime, but that’s not precisely true. The spouse whose relationship with her spouse is built on a belief in fidelity can be harmed by prostitution. And if we’re not willing to allow such psychological as a standard, there’s the issue of sexually transmitted diseases that affect innocent third parties.

    The disease angle could be applied to homosexuality (at least male) in general, insofar as HIV is concentrated in that population and anal intercourse is much more common among male homosexual couples (compared to heterosexual couples) and much more likely to transfer disease.

    The psychological harm angle could be used to criminalize adultery.

    Adult Incest: Incest creates a very high risk of severe birth defects passed onto a child–harm to a third party again. (But if the adults are incapable of reproducing, then what business is it of yours or mine if they engage in incest.)

    This doesn’t diminish your argument, but there are certain serious diseases that only result when both parents are carriers. I want to say Cystic Fibrosis is one, but don’t quote me on that. It is currently legal for two carriers to get married and even to have children.

    Interestingly, in 25 states not only is immediately family incest illegal, first cousins aren’t allowed to marry. Biblically speaking, there is absolutely nothing wrong with marrying one’s first cousin. Genetically speaking, the rate of birth defects is not significantly higher. To the extent that the state has outlawed first-cousin-marriage, then, it has already “redefined marriage”.

  29. James Hanley says:

    Buddyglass, I agree with your arguments. Clearly it appeared that I was arguing for outlawing those things. What I intended was only to point out that there are distinctions between those and SSM that provide at least some purchase for arguments for outlawing them based on harm–purchase that doesn’t exist for SSM, where the only arguments keep boiling down to tradition and morals.

    I actually believe in legalizing prostitution, primarily because we’ll never eliminate it, and legal prostitution would probably be less dangerous, just as legal alcohol tends to be less dangerous than moonshine.

    Incest between siblings when children are involved, I’ll admit I’ve clung to a “ban it” attitude without giving it much thought. But now you and Matty have caused me to pause and begin to give my position some thought.

  30. buddyglass says:

    re: prostitution et. al., it seemed like you were pointing out how these things are fundamentally different from SSM in a way that would give the state license to prohibit them where it otherwise wouldn’t have license to prohibit SSM. I see now that’s not necessarily what you were doing.

    re: Incest w/ children involved. Yeah, I’m not going to say the incest itself should be illegal, but I feel like “having a child with an immediate family member” should be a priori evidence of child abuse. The threat that any children of such a union will be immediately removed from the home might cut down on the number of children born to such unions in the first place.

    re: first cousin marriage, Texas actually takes it a step further. A recent bill actually rendered any sexual relations between first cousins a sex crime. As in, “You do jail time and have to register as a sex offender, for life.” How’s that for nuts.

  31. James Hanley says:

    I pity the poor student who disagrees with you on SSM or any other subject you feel strongly about

    You’ve never been in my classroom. It’s not a blog. It’s a different audience in a different venue.

    You have already expressed your opinion that there is no room for debate on this subject

    That’s a lie. Why do you so regularly misstate others’ positions?

    and that in fact, anyone who disagrees with you on this position is a homophobe bigot.

    To be precise, I never used the term homophobe. I know people who are not homophobic, but have just enough bigotry to not want to allow same-sex marriage. There are gradations in bigotry, from mild to virulent.

    This was in reaction to the Krauthammer column who had the temerity to say, well, that anyone who disagreed with the court decision in support of SSM was a….bigot! Central point of his column being, that the last refuge of a liberal losing in the court of public opinion is to accuse the opposition as being…. “bigoted”.

    You really fell for Krauthammer’s argument that being called a bigot is proof that one is not a bigot? It’s like you’re coming to this blog with a big “kick me” sign on your back that you’ve put there yourself.

    I would think redefining 5,000 year old institutions at the very least, should require some reflection and serious thought and to do so hardly indicates any bigotry.

    You don’t think we’ve given it reflection and serious thought? Really? What do you think these discussions have been about? Why do you think I assigned the topic to my students for several years? Why do you think I’ve been following the issue so closely? And yet in the decade and a half that I’ve been closely following the issue, I have yet to hear an argument that goes beyond, “We’ve never done it that way before” and “gays are icky.” Blindly sticking to tradition is not serious thought. Claiming that somehow marriage will be destroyed and civilization will collapse–withotu ever explaining how marriage will cause that–are not arguments based on reflection and serious thought. My decade+ of reflection and serious thought has led me to the considered conclusion that nobody has made a remotely persuasive argument for any harm that will come from same-sex marriage.

    Mr. Kowal was hardly deserving of your hatchet job-he could not have been more polite and gracious in his responses to your maniacally aggressive line of questioning and commenting.

    Mr. Kowal’s argument was full of logical errors and false assumptions, with the ultimate goal of depriving certain people of their right to the pursuit of happiness. I have no intention of using kid gloves on someone who uses false arguments for the goal of oppressing others. And politeness and graciousness can co-exist with a vicious bigotry (not to say Mr. Kowal is a “vicious” bigot, as I don’t have that much information about him)–former Senator Richard Russell of Georgia was a gentleman’s gentleman, but a virulent hater of blacks. Polite falsehoods are still falsehoods, and polite bigotry is polite bigotry.

    If you don’t like the way I write about this topic, you’re more than welcome to go away and never come back. I don’t see that you’ve made any positive contribution to this blog except to act as an entertaining sideshow, a veritable phoenix of a strawman, regenerating yourself no matter how many times you get burned.

  32. Jennifer says:

    But then, I’m a conservative, and believe in the traditional right to self-government that permits the people to enforce their moral views and protect their social institutions.

    Is that the same strain of conservatism which believes, for example, that Southerners should’ve been allowed to maintain their social institution of Jim Crow, or their moral view that consensual interracial sex goes against the will of God?

  33. Matty says:

    James, if you are going to think through the implications of adult incest thenthis may be a good example to consider.

  34. Tim Kowal says:

    You said:

    There is no doubt at all that we could perpetuate, long term, a republic in which the majority exercised self-rule and regularly infringed on the liberty interests of the minority. The question is, would that be a republic worth defending and keeping? It’s all very easy to be comfortable with that when you’re in the majority. You and I are both white, educated males, yes? Such a republic might work very well for you and me. But you show an appalling callousness toward those who won’t benefit from living in such a republic.

    As a matter of my own personal, Christian values, I do give consideration for the welfare and charity of my neighbors. Certainly, I do not do nearly as much as I should for the poor and the disadvantaged, but I don’t suppose I should be impugned for that on this blog. Nor do I take you as meaning. Instead, it would appear you are suggesting that we ought to infuse our sensitivities and compassion for minority groups—our private morality, in other words—into the way we think about constitutional law. This is an interesting position, which suggests that liberals and conservatives are indeed both moralists—but one seeks to impose its morals through the courts, and the other through their respective legislatures.

    But I also don’t believe that it ought to be our mission through government to eliminate every specter of inferiority from the minds of every minority group. I think it is permissible to try to do this through the normal democratic process. But I think it is impermissible to effect this through the courts. Yet, this was the principal focus of the Perry ruling with respect to the domestic partnerships issue: to redress psychic “harm,” and to change social attitudes. To this end, the court cited “evidence” (scare quotes used emphatically here) demonstrating the “harm” caused because people regard domestic partnership differently than marriage. As made evident by the below examples, the court finds itself in an ironic position of recognizing the substantial value that marriage carries because of its social meaning, and then ordering that meaning be changed in order that others be able to participate in it.

    “It is challenging to fill out forms in doctor’s offices that ask whether she is single, married or divorced because “I have to find myself, you know, scratching something out, putting a line through it and saying ‘domestic partner’ and making sure I explain to folks what that is to make sure that our transaction can go smoothly.” ….

    “[A] domestic partnership is “not something that is necessarily understood or recognized by other people in your environment.” ….

    “None of our friends have ever said, ‘Hey, this is my domestic partner.’” ….

    “Same-sex couples value the social recognition of marriage and believe that the alternative status conveys a message of inferiority.” ….

    “[D]omestic partnerships cannot substitute for marriage because domestic partnerships do not have the same social and historical meaning as marriage and that much of the value of marriage comes from its social meaning.” ….

    “[L]ittle of the cultural esteem surrounding marriage adheres to domestic partnerships.” “Domestic partnerships lack the social meaning associated with marriage.” ….

    “Q. Let me ask you this. How does the cultural value and the meaning, social meaning of marriage, in your view, compare with the social meaning of domestic partnerships and civil unions? A. I appreciate the fact that several states have extended —— maybe it’s many states now, have extended most of the material rights and benefits of marriage to people who have civil unions or domestic partnerships. But there really is no comparison, in my historical view, because there is nothing that is like marriage except marriage.”….

    In practice, these legal alternatives to marriage are limited because they do not map onto a well-developed social institution that gives the act of marrying its social and cultural meaning.” ….

    “The difference between domestic partnerships and marriage is more than simply a word. If we look at public opinion data, for example, there is a sizable proportion of the public, both in California and the United States, who say that they are willing to let same-sex couples have domestic partnerships or civil unions, but not marriage. This suggests a distinction in the minds of a large number of Americans —— it is not simply a word. In addition, looking at the recent history of California, when it became possible for same-sex couples to marry, thousands of them did. And many of those were domestic partners. So, clearly, they thought there was something different about being married.” ….

    “Domestic partnership does not eliminate the structural stigma of Proposition 8 because it does not provide the symbolic or social meaning of marriage.” ….

    “The evidence shows that domestic partnerships do not fulfill California’s due process obligation to plaintiffs for two reasons. First, domestic partnerships are distinct from marriage and do not provide the same social meaning as marriage. FF 53-54. Second, domestic partnerships were created specifically so that California could offer same-sex couples rights and benefits while explicitly withholding marriage from same-sex couples. “….

    “A domestic partnership is not a marriage; while domestic partnerships offer same-sex couples almost all of the rights and responsibilities associated with marriage, the evidence shows that the withholding of the designation “marriage” significantly disadvantages plaintiffs. FF 52-54. The record reflects that marriage is a culturally superior status compared to a domestic partnership.” ….

    I take two things from these excerpts. First, Californians are not “appallingly callous” in declining to change the only definition of marriage they have known their entire lives, and that they understand to be well-entrenched in Western history and tradition. The impact on same-sex couples are, as the court and the plaintiffs’ “experts” acknowledged, “symbolic.” Second, the very relief same-sex couples are after is access to “a well-developed social institution” whose importance is defined by the way people understand it. As a matter of logic, this relief cannot be had by changing the institution or the way people understand it, which is the very thing Perry purports to do.

    Moreover, as to the argument that the people of California are entitled to tread carefully in effecting profound shifts in their bedrock social institution—which might undermine the very importance and social esteem of marriage that the court’s analysis relies upon—Judge Walker ruled: “Plaintiffs presented evidence at trial sufficient to rebut any claim that marriage for same-sex couples amounts to a sweeping social change.” That’s an extraordinary statement. That social “scientists” have the ability to “rebut any claim” that radically changing the institution of marriage—in direct contravention to the will of the majority of the members of that institution—would amount to “a sweeping social change” is going to be a surprising bit of news to a lot of people—including the Ninth Circuit and, eventually, the Supreme Court. Orin Kerr at Volokh explained this well here:

    Whatever your views of same-sex marriage — or Judge Walker’s decision as a whole — I think this particular part of the analysis is pretty weak. First, the idea that same-sex marriage is not a significant social change strikes me as plainly incorrect. This is one of the more significant questions of social policy of our time: Whether you think it’s the greatest advance for civil rights in America or the end of the world, it seems pretty clear that it’s a big deal.

    Second, Judge Walker’s reliance on his factual findings to defeat the argument about the pace of social change seems to miss the point. The claim about sweeping social change is an an ex ante argument about uncertainty. Predicting the future is tricky business, the argument runs. Views of enlightened social policy can change, and our perspective today may or may not seem right tomorrow. For that reason, we should proceed cautiously in changing social institutions to avoid errors that may be hard to correct. Whether this is a valid constitutional argument or not, it seems odd to respond to it by making a factual finding about what the future will be like and then saying that the announced factual findings make the concern irrational. It misses the entire argument, which is about our knowledge-uncertainty, by trying to make it a matter of the judge’s power to find facts.

    Suffice it to say, the legal reasoning in the ruling is really quite problematic.

  35. About symbolic vs. practical, Mr. Kowal, I’m still waiting for your opinion on my post here. I have a weird feeling, whenever I demonstrate a personal stake in the issue, I get ignored so people can keep talking theory and forget that it effects people.

    So, Mr. Kowal, I will reiterate: if same-gender couples are after the word “marriage” rather than just the right, so why did Governor Lingle of Hawaii veto the Civil Union Bill on the grounds that it was “marriage by any other name”? Why did Washington and Wisconsin’s domestic partnerships get under attack for offering part of the rights associated with marriage?

    Why are my partner and I denied the right to family-base immigration after over three years, when his own brother was able to easily bring in his recently-met, recently-married wife? Apparently people insist that family-based immigration is limited to married people, and same-gender couples can’t get married anyway, so we’re bummed.

    And on the topic of through the courts vs. through legislature: as far as I know, the courts tackled down Jim Crow laws long before any legislature would touch them with a ten-foot pole. But of course I’m not American and not being married will keep me from being one for another while, what do I know about American history, right?

  36. Tim Kowal says:

    Taking on a defense of Hawaii’s laws might be too great a burden for me and what’s left of the weekend. I don’t mean to leave points unaddressed, but there have been many arguments raised here, the vast majority directed either at my positions or at me personally. Not an ideal environment for such discussions, this blog.

    But I fear I would be discourteous to fail to attempt at least a brief response to your points, particularly as you have taken pains to repeat them.

    if same-gender couples are after the word “marriage” rather than just the right, so why did Governor Lingle of Hawaii veto the Civil Union Bill on the grounds that it was “marriage by any other name”? Why did Washington and Wisconsin’s domestic partnerships get under attack for offering part of the rights associated with marriage?

    I have said that in the Perry case concerning California’s Prop 8, the plaintiffs have been arguing marriage as a symbolic right, and have not particularly emphasized or specifically cited the economic or other rights they are being denied through domestic partnership laws rather than marriage. But as it has not been specifically relevant to the discussion here, I have not discussed whether same-sex couples are constitutionally entitled to all the rights and privileges that California’s domestic partnership laws entitle them. I would take the position they are not. This doesn’t mean I am against them as a political/legislative matter. But for the same reasons I’ve expressed here throughout, I don’t believe the text, structure, or purposes of the Constitution compels it.

    Why are my partner and I denied the right to family-base immigration after over three years, when his own brother was able to easily bring in his recently-met, recently-married wife?

    It would seem there is a much easier way to establish a rational basis for immigration laws limiting family-based immigration to traditional marriages. Immigration officials have to prevent against abuse of the immigration laws, and expanding the definition of marriage would make it more difficult to identify factors by which to determine the legitimacy of the citizen-alien relationship and thus ferret out potential fraud. Moreover, the administration of immigration laws would be problematic if U.S. policy recognized relationships for the purposes of immigration that the couples’ destination states did not. And this is on top of all of the other rational basis arguments in favor of traditional marriage applied by the states to its citizens.

    And on the topic of through the courts vs. through legislature: as far as I know, the courts tackled down Jim Crow laws long before any legislature would touch them with a ten-foot pole.

    This issue I did touch on in the DADT post here.

  37. I’m sorry for taking this matter especially at heart, Mr. Kowal, but in matters of immigration laws I’m growing tired of people telling me that they don’t refuse my rights on basis of anything wrong I did, but on the distant chance that someone somewhere I’ve never met and will never meet will do something wrong.

    I ask you one thing, Mr. Kowal. Imagine if you were presented with three alternatives: stay in the country you love, respect the laws of said country or be with the one you love. You’re allowed to choose to follow only two of these, not all three. What would you do?

    While you debate on symbolics and possibilities and whatnot, real people are facing real issues that you cannot possibly imagine. I already mentioned having spent almost 1,200 days separated from my partner. And compared to thousands, if not tens of thousands of your fellow Americans, my partner and I are getting off rather lightly at that.

  38. James Hanley says:

    In this response I use quotes both from Mr. Kowal and from other sources. All quotes that are from Mr. Kowal will be denoted with [TK].

    [TK] …it would appear you are suggesting that we ought to infuse our sensitivities and compassion for minority groups—our private morality, in other words—into the way we think about constitutional law. This is an interesting position, which suggests that liberals and conservatives are indeed both moralists—but one seeks to impose its morals through the courts, and the other through their respective legislatures

    That is incorrect. That is, you may be correct about liberals and conservatives, but you absolutely have misinterpreted my position. I want people to keep their private morality out of the way they think about constitutional law. Private morality is irrelevant—just as Judge Walker said in his opinion. My position is that unless you can come up with a good justification for discrimination that is beyond private morality, the discrimination ought not be allowed. The primary justification is harm to others. That’s why we don’t let my 12 year old daughter drive, and why we don’t let adults marry children. That’s not private morality.

    [TK] But I also don’t believe that it ought to be our mission through government to eliminate every specter of inferiority from the minds of every minority group (emphasis added)

    Wow, I have never before heard anyone walk the Plessy v. Ferguson plank. The majority argument in that case was that the sense of inferiority was only in the minorities’ minds.

    [From Plessy] We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it

    You add a lot of quotes that you seem to think suggest that it is only in their minds—only a symbolic inferiority. Even if it was just a symbolic inferiority, what gives the majority the right to take upon itself a symbolic badge of honor that it denies to the minority? But of course it’s not just in their minds—it’s in the way other people treat them.

    [From Perry V. Schwarzenegger] To illustrate his opinion that domestic partnerships are viewed by society as different from marriage, Herek pointed to a letter sent by the California Secretary of State to registered domestic partners in 2004 informing them of upcoming changes to the law and suggesting dissolution of their partnership to avoid any unwanted financial effects. Tr 2047:15-2048:5, PX2265 (Letter from Kevin Shelley, California Secretary of State, to Registered Domestic Partners). Herek concluded that a similar letter to married couples would not have suggested divorce.

    When people are faced with such indignities, it’s not just in their head. It’s so easy for people like you and me, who are part of the safe comfortable majority and can enjoy the meaning of the word marriage without having to think about it. But just consider if that word was suddenly stripped from you—if the state decided that you and your wife were not actually married. Do you really think that would have no affect?

    You value what the state has granted you, but deny that it is valuable enough for others to actually suffer from the absence of it. How do you reconcile that contradiction?

    [TK] But I think it is impermissible to effect this through the courts.

    If we are specifically talking about removing every sense of inferiority that is simply in people’s minds, I agree. But that’s not the issue. And we are not talking about private discrimination (most people here would say it’s not the role of the courts, or government at all, to eliminate all private discrimination).

    We are talking about legal discrimination by the government. And it obviously is permissible for the courts to closely examine every instance of legal discrimination to see if it is a legitimate exercise of the government’s power.

    [TK] As made evident by the below examples, the court finds itself in an ironic position of recognizing the substantial value that marriage carries because of its social meaning, and then ordering that meaning be changed in order that others be able to participate in it.

    So you think the most important social meaning of marriage is “one man/one woman”? What a dreadfully shallow understanding of the meaning of marriage. I’m willing to bet that your marriage, like mine, has much deeper meaning than just that we’re men and our wives are women. It is that meaning—all that is embedded in a relationship between two people and the commitment expressed to the world in the word marriage—that homosexuals are denied. That meaning is not changed by allowing others to share in it.

    In fact this is the real irony—the so-called defenders of marriage, to insist that same-sex marriage would fundamentally alter the institution of marriage—are forced to define marriage’s meaning in the most crass and shallow terms. It’s only about a man and a woman coupling so they can procreate. It’s a lie, of course. They don’t really believe that this is all that marriage is about, but they have to say so, or else admit that the real meaning of marriage won’t be changed by gay couples sharing it. (Or if they do actually believe that this is all marriage is about, I truly feel sorry for them.)

    Much of the rest of your argument rests on this notion that same-sex marriage is a “radical” change, but you’ve not presented anything that changes except the man-woman part, which is not the real meaning of marriage.

    [TK] Whatever your views of same-sex marriage — or Judge Walker’s decision as a whole — I think this particular part of the analysis is pretty weak. First, the idea that same-sex marriage is not a significant social change strikes me as plainly incorrect.

    Because you are relying on an understanding of marriage’s meaning that is grotesquely shallow, and which you don’t believe in strongly enough to apply to the meaning of your own marriage.

    [TK] This is one of the more significant questions of social policy of our time: Whether you think it’s the greatest advance for civil rights in America or the end of the world, it seems pretty clear that it’s a big deal. Second, Judge Walker’s reliance on his factual findings to defeat the argument about the pace of social change seems to miss the point. The claim about sweeping social change is an an ex ante argument about uncertainty.

    Sorry, the Constitution doesn’t have an “equal protection except in conditions of uncertainty clause, and justifying discrimination on the basis that ending it would be a radical change is just circular reasoning.

    Sure, it’s a big deal. But that’s because bigotry gets deeply engrained in people, and they have a hard time giving it up, even if they can’t explain what harm could result. Look at your own argument again. All you can say is, “Tradition! Radical change!” Yet you can’t say what the actual effects of that change would be. (In addition, you continue to ignore the other commenters’ evidence that marriage has not had a stable consistent definition.)

    [TK] Predicting the future is tricky business, the argument runs. Views of enlightened social policy can change, and our perspective today may or may not seem right tomorrow. For that reason, we should proceed cautiously in changing social institutions to avoid errors that may be hard to correct.

    You do know that precisely this argument was made in response to Brown, right? That’s why the Court decided Brown II–to respond to school districts saying they shouldn’t be asked to move too fast. And as Martin Luther King said, “Perhaps it is easy for those who have never felt the stinging darts of segregation to say, “Wait.” Personally I’d be very uncomfortable to make public arguments that mimic Plessy and the opponents of Brown. If you want people to believe your opposition is based on more than mere bigotry, you’d do well to find arguments that weren’t so famously used by southern racists.

    Besides, we’re no longer predicting the future. We can see what’s happened in other states and countries that have legalized same-sex marriage. We’re now looking at actual case studies, and in not one of them can you find evidence that same-sex marriage has caused radical social change. In Massachusetts, a Republican state senator who had actually at one time co-sponsored an amendment to change the state constitution to ban SSM, said,

    “Gay marriage has begun, and life has not changed for the citizens of the commonwealth, with the exception of those who can now marry,”

    And you misrepresent the social science findings presented at trial. They were based on empirical studies—studies of what is actually occurring now–rather than on mere guesses about the future.

    You make some pretense of knowing that SSM might cause some future danger, but you willfully ignore the available evidence showing that it is causing no harm in the present. Arguments from ignorance persuade no one of anything but one’s ignorance.

    [TK] Suffice it to say, the legal reasoning in the ruling is really quite problematic.

    Really? You haven’t addressed the legal reasoning. You have discussed the finding of facts, but the finding of facts is not the legal reasoning, it only provides the foundation for that reasoning.

    You’ve had plenty of opportunities now to actually discuss legal reasoning, but you have continually avoided doing so. You have repeatedly suggested that the legal reasoning is deeply flawed—perhaps so flawed that it’s not even a legitimate action by the judge, but far outside his allowable constitutional role, and at the very least problematic–but you have yet to even begin an argument that actually considers the legal reasoning of any actual case.

    I challenge you, Mr. Kowal, to do one or both of the following. 1) Demonstrate that same-sex marriage will actually cause some kind of social harm, the prevention of which justifies continuing discrimination; 2) address the actual legal argument in Perry. So far you’ve done neither.

  39. James Hanley says:

    many arguments raised here, the vast majority directed either at my positions or at me personally. Not an ideal environment for such discussions, this blog.

    You know where the door is. You’ve come to a libertarian blog–and you’re surprised that it’s not an “ideal” place to argue in favor of discrimination?

    Good lord, man, it’s like going into General Motors and arguing for buying a Honda!

  40. D.A. Ridgely says:

    Any chance we could modify that metaphor and make us Honda? *grin*

  41. buddyglass says:

    Try posting anything remotely in favor of regulation or government spending on the reason.com blog. Those guys are so much more vicious.

  42. Tim Kowal says:

    If I “absolutely have misinterpreted” your position that you “want people to keep their private morality out of the way they think about constitutional law,” then please indicate how I am to comport your allegation of my “appalling callousness toward those who won’t benefit from living in such a republic.” For once and for all, ought we to concern our sensibilities in this debate or oughtn’t we?

    The analysis of why same-sex marriage is unlike racial discrimination has been repeatedly articulated in this thread. It is desperation to suggest that an argument used in a later overruled case is necessarily invalid for that reason alone. Property rights were not cast aside because they were invoked to arrive at the loathsome holding in Dred Scott. And the right to make laws affecting classifications of persons was not made subject to a proviso to prevent effecting a sense of psychological insecurity or inferiority. Such a proviso does not exist, and Plessy was not wrongly decided because it failed to establish it. It was wrongly decided because of the obvious reason Justice Harlan observed in his dissent: that “Everyone knows that the statute in question had its origin in the purpose not so much to exclude white persons from railroad cars occupied by blacks as to exclude colored people from coaches occupied by or assigned to white persons.” It was the invidious purpose of the law, the animus of those who enacted it, that rendered it invalid. This is what was missing in the constitutional analysis in Varnum v. Brien, and it is what was missing in Perry. (Incidentally, “animus” was the stated, though woefully unsubstantiated, basis for the holding in Romer v. Evans, too. )

    It’s so easy for people like you and me, who are part of the safe comfortable majority and can enjoy the meaning of the word marriage without having to think about it. But just consider if that word was suddenly stripped from you—if the state decided that you and your wife were not actually married. Do you really think that would have no affect?

    You value what the state has granted you, but deny that it is valuable enough for others to actually suffer from the absence of it. How do you reconcile that contradiction?

    Advocates of same-sex marriage fundamentally misunderstand the relationship of marriage and the state. Marriage does not subsist in the state. The state “grants” marriage licenses, but it does not “make” people married in the real sense. Marriage is not fundamentally a political or legal institution. It is a cultural institution. Thus, yours is a false question. At this time in history, were the state to suddenly change its laws to say that a man and a woman could not be married, it fail to garner any respect. Men and women would still get married. Their friends and family, as well as society at large, would still recognize it, facilitate it, promote it. The state will have only harmed itself through legislative acts that divorced the government from the reality of its governed’s institutions.

    To better illustrate this point, I devised a thought experiment, from which I think this discussion would benefit, should it continue.

    With respect to the “evidence” offered at trial, I’d recommend Jim Manzi’s recent piece evaluating just how scientific social “science” really is.

    Much of the rest of your comment relates to arguments made by Orin Kerr, which I had quoted above as examples of the flaws in the legal reasoning in Perry. Thus, your “challenge” is already met to the extent I have addressed several of the legal arguments in the ruling, e.g., whether private morals may be a basis for civil laws concerning marriage, whether same-sex couples have a right to the “symbolism” of marriage and whether they are harmed by not having access to it, whether the evidence supports the bold and incredible conclusion of the court that allowing same-sex marriage will not effect social change at any point in the future, etc. It was never my interest in any of my comments here to outline the arguments concerning the social harm that may occur by striking down Prop 8. Instead, we have discussed in detail whether the rule announced for the first time in Perry, that the Constitution does not permit private morals to form the basis of any law, is sound.

    I am skeptical of the utility in further developing these arguments, however, given your repeated refusal to stipulate that they are either “legal arguments” or “jurisprudential arguments.” Given this pattern, and notwithstanding your “challenge” has already been met, I would be hard pressed to see the value of accepting it for fear I would receive nothing in response but a Frenchman’s waive that I did not meet your standard of an argument that you would be willing to accept.

  43. James Hanley says:

    DAR–OK, it’s like going into a Honda factory and arguing in favor of buying a Hyundai.

  44. Pingback: On Giving Effect to Constitutional Provisions Without Giving Rise to an Aristocracy « Notes From Babel

  45. buddyglass says:

    “Demonstrate that same-sex marriage will actually cause some kind of social harm, the prevention of which justifies continuing discrimination”

    This is actually a two part thing. One could consider SSM to cause “social harm” while still supporting its legality on principle.

  46. Jennifer says:

    No, actually, more like going to Honda and arguing the government should bail out General Motors.

  47. James Hanley says:

    Re: Paragraph 1. Your “appalling callousness” has nothing to do with the Constitution. It’s just a comment that you don’t seem to have a very rich view of the purpose of the Constitution. Both here and at your blog you treat it as just the perpetuation of a self-governing republic, as though self-governance was the end in itself, and without giving any indication that you recognize that the purpose of the republic is to secure our liberties. You can be as appallingly callous towards any minority you want in your personal life–you just don’t get to enact your animosity to them into law unless your animosity is based on harm they do to others (i.e., that minority that constitutes child molesters can be legitimately restricted in their particular pursuit of happiness).

    I just don’t see that as the difficult question you make it out to be. Personal moral judgments are insufficient grounds for restricting others’ behavior. Prevention of harm to non-consenters is.

    The analysis of why same-sex marriage is unlike racial discrimination has been repeatedly articulated in this thread.

    No, it hasn’t. That’s barely been touched on here. But as regards Plessy, my point is that you are as wrong as the majority was in that case, in ascribing only a mere “it’s in their own mind” sense of harm.

    Re: “animus.” First, I think you’re wrong on the law. But I’ll need to go back to my law books to check that out (and since I loaned most of them out and never got them back, I may have to go find another one before I can adequately respond). Second, I saw your post from 2009. It was wonderfully disingenuous. You noted that because the Iowa legislature had passed some laws removing discriminations against homosexuals, that proved there was no animus. Try applying that logic to racial distinctions. If a state had removed some of its Jim Crow laws, the remainder would suddenly have become immune to review because, obviously, the removal of some laws would prove that animus no longer existed. That’s very weak logic.

    I notice that you are very eager to deny that there is any animus animating the anti-gay rights portion of the public. I don’t think there’s any possible way to persuade you, but suffice it to say that I’m not inclined to take the word of someone who’s anti gay-rights on that matter. I’m inevitably reminded of southerners who insisted that “we get along fine with our negroes; there’s no racial problems in this town.” And you set up an impossible standard for gays to prove animus–if they say they experience it, you say it’s just in their heads.

    If you can’t quite grasp the smug privilege (and there’s a word I normally reject with venom) of your position, you’re truly quite sheltered. The comfortable member of the majority ensuring the distressed member of the minority that really there’s no animosity and they’re just imagining it.

    If marriage does not exist in the state, then why do you want the state to grant marriage licenses to heterosexuals? Look, I agree that marriage does not exist in the state, and my preferred outcome is that the state gets out of marriage altogether. But since it’s not going to, I say it has to treat everyone equally. But you have to explain why the state, if marriage is outside of it, should grant apparently meaningless marriage licenses to one group and not another.

    And if you think same-sex marriages don’t exist because marriage is–as I agree-a cultural institution, then you’re living a very sheltered life. Jason Kuznicki is married, and from what he’s said, it’s clear to me that his friends and a good portion of his family recognize his marriage. I certainly do. Most of the people I know treat gay marriages as true marriages. Are we not part of the culture? A growing number of people in this country agree that same-sex marriage should be allowed. Are they not part of the culture? You are assuming a monotonic culture, but that’s not what we have in the U.S. Some Catholics still don’t recognize non-Catholic marriages. Which group of us gets to define what marriage means culturally? You’re trying to preserve that power to your group alone, but it is already slipping out of your hand. a majority in Iowa support same-sex marriage–does that mean that culturally it has truly become marriage in Iowa? Or does suddenly the majority lose their power to define the meaning of marriage when it goes the wrong way?

    I am skeptical of the utility in further developing these arguments, however, given your repeated refusal to stipulate that they are either “legal arguments” or “jurisprudential arguments.”

    I missed your arguments about Kerr–for which I apologize, and I’ll look at that separately–so I wasn’t referring to them when I said you hadn’t made jurisprudential or legal arguments. But general philosophy of law arguments are not jurisprudential arguments, and findings of facts are not legal reasoning. That’s not trying to be snarky, that’s just the reality of the meaning of those words. If in my constitutional law class in grad school I had confused findings of facts with legal reasoning, I would have received a much sharper response than you receive from me.

  48. James Hanley says:

    Mr. Kowal,

    Re: Jim Manzi’s article. I’m a professional social scientist, so I imagine I know considerably more about the overall field than you do. While you rely on a news article, I’m reading the peer reviewed literature. So you’re acting rather like a creationist telling a biologist about evolution. Anyway, to the point. The article talks about the general difficulty of knowledge in the social sciences, which is, in general, correct. But it says nothing about the studies that were used in the trial. So you’re using a general critique of the field’s imperfections to argue that a specific study is wrong. If you think social science is an imperfect field or knowledge, let me assure you that one of the things I teach my students in research methods is not to fall into the genetic fallacy, which you just did.

    And now that I review what you wrote about Kerr, I see that you did not actually engage in any legal analysis. You simply cut and pasted from Kerr, without any analysis of your own. I begin to fear, Mr. Kowal, that you actually know nothing about legal analysis. For what it’s worth, I also think Judge Walker’s ruling was less than iron-clad legal logic. But I’ve refrained from getting into it to see if you would ever offer any analysis of our own of the ruling. But you haven’t. You’ve just critiqued it without actually explaining why, then did a quick cut-and-paste from someone else, without giving any analysis of that, either.

    But here’s the takeaway point. Almost every judicial ruling is less than wholly persuasive. After reading countless of them, I’ve long since lost track of the number of times I’ve read an opinion and gone, “Uh, huh, that sounds right(wrong),” then read the dissent and gone, “Oh, wait, that sounds right(wrong).” Constitutional interpretation is simply not cut-and-dried most of the time. It’s perfectly legitimate to disagree with Walker’s ruling–if you actually read and understand it, and can make the legal argument against it. What’s not legitimate is to begin from the standpoint that it didn’t reach your preferred outcome, and from that position assume that it’s obviously wrong, or worse, not even a legitimate legal ruling but a judge going beyond his authority. You’ve amply demonstrated that you don’t have even a scintilla of experience in legal reasoning, so it’s clear that your objections aren’t really based on an understanding of the legal weaknesses in Judge Walker’s ruling, but on your assumption that the Constitution couldn’t possibly mean what you don’t want it to mean.

    Now, young man, I hope that wasn’t too excitable for you.

  49. Scott says:

    Thanks, Hanley! Jason and I recognize your marriage, too. 🙂

    Incidentally, we visited a medium-sized local church yesterday–one which asks its visitors to introduce themselves during the service. I introduced Jason as my husband, and then our daughter (who had the best seat in the house on Jason’s shoulders), to thunderous applause. I think the applause was really for our little girl, but you get the point. Our marriage was clearly and vocally recognized by this faith community.

  50. Jim51 says:

    Mr. Hanley,
    I have been following this discussion with much interest. I have also read the judges decision and some of the transcripts of testimony.
    I, too, have been awaiting Mr. Kowal to “Demonstrate that same-sex marriage will actually cause some kind of social harm, the prevention of which justifies continuing discrimination.” I awaited the same, in vain, as I reviewed the case itself. The proponents of Prop 8 attempted to substantiate neither the claims made in court nor the claims made during the political battle.
    I saw this also in the Massachusetts case. The opponents of gay marraige there were also unable to provide any evidence of the legitimacy of their rational basis claims for this differential treatment before the law.
    It actually occured to me that the proponents of Prop 8 had no intention of winning this case at the district level. From what I saw they didn’t even make an attempt. The judge himself noted this in his decision. Their loss there certainly seems to have served their own purposes better than a win would have.
    Am I being paranoid?
    Jim51

  51. James Hanley says:

    Jim–without meaning it badly, perhaps just a bit paranoid. If they had won, Perry would have appealed. Either way this case was going to be appealed to the SC, and a victory in the 9th Circuit would be a great outcome for the pro-Prop 8 folks, because then the SC could just let that ruling stand and decline to hear an appeal by Perry. But by presenting such a poor case at the District Court level they have hamstrung themselves a bit, since they can’t introduce new facts on appeal. The facts they presented are all the facts they get to use from here on out (assuming they’re allowed standing to appeal). I don’t think they sand-bagged. I think they actually couldn’t come up with a better factual argument because it just doesn’t exist. I don’t blame you for a bit of paranoia, though. It’s endemic to life as a member of the minority, no?

    Scott–Thanks! I was afraid that you were using your marriage to destroy the legitimacy of mine. *grin* I hope someday our families can actually meet. I’m sure my daughters would be delighted to meet your daughter.

  52. OFT says:

    Jim51 says: “Demonstrate that same-sex marriage will actually cause some kind of social harm, the prevention of which justifies continuing discrimination.”..The opponents of gay marraige there were also unable to provide any evidence of the legitimacy of their rational basis claims for this differential treatment before the law.

    When this does go to the SC, the majority of constructionist Justices will appeal to the Founding Fathers, as they should. Because the framers executed homosexuals, what will they rule? However, the framers obviously saw a social harm with homosexuality by imposing the death penalty. Here is George Washington’s General Orders for March 14, 1778:

    At a General Court Martial whereof Colo. Tupper was President (10th March 1778), Lieutt. Enslin of Colo. Malcom’s Regiment [was] tried for attempting to commit sodomy, with John Monhort a soldier; Secondly, For Perjury in swearing to false accounts, [he was] found guilty of the charges exhibited against him, being breaches of 5th. Article 18th. Section of the Articles of War and [we] do sentence him to be dismiss’d [from] the service with infamy. His Excellency the Commander in Chief approves the sentence and with abhorrence and detestation of such infamous crimes orders Lieutt. Enslin to be drummed out of camp tomorrow morning by all the drummers and fifers in the Army never to return; The drummers and fifers [are] to attend on the Grand Parade at Guard mounting for that Purpose.

    -GW, The Writings of George Washington, John C. Fitzpatrick, editor (Washington: U. S. Government Printing Office, 1934), Vol. XI, pp. 83-84, from General Orders at Valley Forge on March 14, 1778.

    As with Hawthorne’s, Scarlet Letter, Lieutt. Enslin’s reputation was destroyed for life. GW used “sodomy” rather than the word “rape.” indicating what crime this was. Immorality, contrary to the Scriptures was heavily penalized. In fact, Jefferson himself authored a bill penalizing sodomy by castration.

    John Adams (the founder of the Navy), on October 13, 1798, while serving as President of the United States and Commander-in-Chief, told the military:

    We have no government armed with power capable of contending with human passions unbridled by morality and religion. . . . Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.

    -The Works of John Adams, Second President of the United States, Charles Francis Adams, editor (Boston: Little, Brown, 1854), Vol. IX, p. 229, dated October 11, 1798.

    It was the morality of the Scriptures which founded our nation, and the Christian Nationa argument against homosexuality.

  53. OFT says:

    GW’s General Orders are distinct from the Framers’ laws on homosexuality.

  54. OFT says:

    Christians today would, no doubt, shriek at the penalty the Framers employed against homosexuality.

  55. Jon Rowe says:

    OFT,

    Can you point to ONE, just ONE example of a homosexual being executed in America for the crime of consensual sodomy?

    The Cato Institute in their brief submitted for the Lawrence v. Texas case demonstrated that virtually all “sodomy” prosecutions involved non-consensual acts, that when a man raped another man, he would not be prosecuted for “rape” but “sodomy.”

    That’s likely the case with the GW incident given that only ONE party seemed guilty. With consensual “sodomy” it takes TWO to tango.

  56. Jon Rowe says:

    Likewise, Lieutt. Enslin — who in all likelihood tried to rape another soldier — wasn’t executed but drummed out of the military.

    And OFT also knows that Baron Von Steuban was a big homo. GW heard rumors and his reaction was as long as BVS doesn’t cause trouble, “don’t ask don’t tell.” Of course that would be his reaction as BVS was instrumental in securing victory over the British.

  57. Jim51 says:

    Mr. Hanley,

    “But by presenting such a poor case at the District Court level they have hamstrung themselves a bit, since they can’t introduce new facts on appeal. The facts they presented are all the facts they get to use from here on out …”

    OK, you’re right. I didn’t think about that when my paranoia set in.

    Jim51

  58. James Hanley says:

    Jon,

    Interesting history. I knew none of that.

  59. OFT says:

    Jon,

    Sometimes there’s no option to reply directly. Is the reply button absent on anyone’s screen? Anyway, only one man was executed for homosexuality at that time; most likely due to the harsh penalty enacted.

    GW did not use the word “rape” which he would have, as “sodomy” or “buggery” was the word used for homosexuality. Webster’s 1828 defines sodomy as “A crime against nature”. Rape is defined as “seizing by force.”

    Jon says: And OFT also knows that Baron Von Steuban was a big homo. GW heard rumors and his reaction was as long as BVS doesn’t cause trouble, “don’t ask don’t tell.” Of course that would be his reaction as BVS was instrumental in securing victory over the British.

    This theory is based on revisionist history from Randy Shilts.

    “Randy Shilts’ revisionist work, Conduct Unbecoming, attempts to provide historical precedent for homosexuals in the military by claiming that the General Baron von Steuben, a Prussian fighting for the American cause, was gay (see also Newsweek, Feb. 1, 1993, “What’s Fair in Love and War,” pp. 58-59). Shilts’ accusations against von Steuben are unacceptable to the very source he cites–a biography authored by John Palmer (see John McAuley Palmer, General Von Steuben , New Haven: Yale University Press, 1937). Palmer, although acknowledging an anonymous 1777 letter accusing the Baron of sexual improprieties, concluded that it was “probably a malicious slander that originated among Steuben’s enemies,” further stating that “the charge is inconsistent with the conception of Steuben’s personality that has grown up in my mind after eight years’ study.” Additionally, Shilts claims that the Baron’s 17 year old interpreter, Pierre Etienne Du Ponceau, was his lover, citing his youth and lack of linguistic skills as proof. However, Thomas McKean, signer of the Declaration of Independence, says that Du Ponceau had offered “satisfactory proof of his knowledge in the languages.” Furthermore, the Dictionary of American Biography says of the married Frenchman that “his contributions to historical and linguistic literature were numerous, particularly on philological subjects.” Shilts’ claims lack credible historical documentation, and are a hindrance to any substantive debate on this extremely important issue.”
    http://www.wallbuilders.com/LIBissuesArticles.asp?id=101

    Even the guy that Shilts quotes said Steuben wasn’t gay. I wonder how many books that guy sold. I have seen this rebuttal from others beside Barton.

  60. OFT says:

    Thomas Jefferson also knew the difference between sodomy and rape:

    In 1779 Thomas Jefferson prepared a draft of Virginia’s criminal statute, envisaging that the punishment for sodomy should be castration. The bill read:

    “Whosoever shall be guilty of rape, polygamy, or sodomy with a man or woman, shall be punished; if a man, by castration, a woman, by boring through the cartilage of her nose a hole of one half inch in diameter at the least.” (Virginia Bill number 64; authored by Jefferson; June 18, 1779).

  61. D.A. Ridgely says:

    I’ve often cited that Jefferson proposal in discussions about the Founding Fathers’ original intent regarding cruel and unusual punishment. And Jefferson, after all, was as close to a thoroughgoing Enlightenment Founder as they came.

    It also proves what a man for all seasons Jefferson was, foreseeing a punishment for male criminals contemporary conservatives could endorse and a fashion statement popular among contemporary female progressives.

  62. James Hanley says:

    I think the reply button only exists for the first one or two levels. Since each comment that is done via reply is a successively narrow column, to go down too many levels would eventually result in a reply that
    l
    o
    o
    k
    s

    l
    i
    k
    e

    t
    h
    i
    s
    .

    At least that’s my best guess about why it’s sometimes there and sometimes not.

  63. Jon Rowe says:

    I don’t care what word GW used. If you examine the history of “sodomy” laws you’ll see they were commonly used to prosecute non-consensual acts and that’s a fact that can’t be danced around.

  64. Jon Rowe says:

    Regarding the BVS thing, Barton is the one who is being the revisionist, which is part of his MO. Richard Brookhiser in his book on What Would the Founders Do confirms that it’s likely that BVS was a homo as have many other scholars.

  65. James Hanley says:

    OFT, if you want to provide credible historical sources to back up your claims, we’re all for that. Wallbuilders ain’t it, though. They’re well-known falsifiers of quotes and historical claims. You might as well quote the Chinese Central Committee on the success of their latest 5 year plan.

  66. OFT says:

    Everyone makes mistakes as does Barton, however in this instance, it appears legit.

  67. Michael Enquist says:

    Franck,

    I’m posting this after Mr. Kowal’s attempt to address your specific case, but I see that it will be in the scroll down above his post.

    Mr. Rabeson,

    I had never encountered your situation before, and I work with new Americans every day. In fact, my family specifically benefitted from having the kind of marriage that the government says is A-OK in that my wife was able to come to the US just because she was married to me, a US citizen by birth. Subseqently, she gained her citizenship as was able to bring her heterosexual parents into the US.

    It had never occurred to me until now that if I had married another man (still looking at you, Mark Boggs ;> ), then I would have had to leave my spouse behind, or, if things had proceeded as they did, but my wife had two dads, then only one – the one with the familial claim – would have been allowed in.

    This is much after the fact and we’ve gone on to another thread, but I find Mr. Kowal’s argument against not allowing the US citizend in a same gender marriage to sponsor his or her partner because it “would make it more difficult to identify factors by which to determine the legitimacy of the citizen-alien relationship and thus ferret out potential fraud” to be comepletely bogus and shows very little understanding on his part wrt the immigration process. If I were to marry a man in a country where same gender marriages were legal and then try to bring my spouse to the US, BCIS would be able to use exactly the same mechanisms to “ferret out potential fraud,” that they did when I married a woman outside the US and brought her to live here.

    Mr. Kowal’s argument that it would be problematic to bring a same-gender spouse through the immigration process only to deposit the couple in a US State that does not recognize same gender marriages is much better and fits in with the problem we have now: What happens to the same gender marriage performed in a State where it’s legal when the couple moves to one where it’s not? We already know the marriage is legally unrecognized.

  68. Michael Enquist says:

    Well, I was incorrect. My post came in later.

  69. Heidegger says:

    Hey, what’s going here? Opposite sex couples and senior citizens are not allowed to enter into legal civil unions? That’s at least the info I’ve been able to come up with–could be very wrong, though, so if anyone has information to contradict this, please post it. (Also, only three countries in the world recognize opposite sex-civil unions—New Zealand, Uruguay, and Quebec) If it’s true, I think it radically changes the SSM debate. To say the least, it appears to be blatantly discriminatory, but if given more thought, it actually strengthens the SSM position. Granted, it takes a bit of a stretch, but all the endless legal slicing and dicing of the words, civil union and marriage could perhaps be better served if codified uniformly. Just a thought…

    Hey, Science Guys, ppnl and JamesK–thanks for the lesson on the “Coriolis effect”. My head’s still spinning though, counter-clockwise of course, being an inhabitant in the northern hemisphere–is the jury still out on this subject or is it “settled” science? ppnl’s explanation seems to suggest that, under very strict, specific circumstances, it’s possible for water to rotate differently in the two hemispheres. I also think strong arguments can be made why global warming can be very beneficial to the human race–it’s not like this is a new phenomenon or anything–there are least 600 documented warming/cooling cycles that we’re aware of and we’re still here. That’s another discussion, but thanks again. Ppnl, if you’re not already, you should be a professional science writer—you make complex scientific subject very intelligible–even to cretins like me!

  70. Heidegger says:

    Forgot to add—NOT ONE STATE allows opposite-sex civil unions. This can’t be right, can it? There are any number of reasons why one might elect to have a civil union rather than a marriage–just look at France.

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