February 21,2007 a good day for Civil Rights,a bad day "gay haters"

I Set my VCR to tape tomorows Pat Robertson's 700 club.Maybe he will blame
the Gays for 9/11 again

Seriously, I cannot understand it. What is the opposition to same-sex marriage? Why does this threaten you so muuch?

Calling anyone and everyone who disagrees with your peculiar position on an issue a "hater" is not a means of stimulating debate, but is a crude, childish, but unfortunately very predictable means of trying to silence dissent, without confronting the substance of the issue. Good people can disagree on issues without being disagreeable.

Regardless of one's position on the particular issue in question, one man (the AG) does not have the unilateral right to effectively legislate by decree, especially when it has to do with something that has not been decided one way or the other by the voters of the state of Rhode Island; by a vote of the Rhode Island General Assembly; or which is expressly permitted in the Rhode Island Constitution -- or as a judicial interpretation of our constitution's "original intent" by the Rhode Island Judicial system itself (though, of course I don't believe judges should make law).

Just because the Rhode Island State Constitution doesn't explicitly forbid something, does not by default make something all of a sudden "legal." I'm sure that putting crack in my dog's alpo is not legal, even though the constitution is silent. Where does this end? Let's say I've got the hot's for my sister ... using your "feel good" logic, why can't I marry her? Are my rights being violated then? If there was a state that said that was "ok," should Rhode Island be forced to recognize that?

If this decree by the AG is allowed to stand, not only would it make a mockery of the legislative process, which is at the heart of our (small "r") republican form of government, but it let's other states judicial processes effectively control de facto law in our own state. That cannot be permitted in a democracy.

A bad day for Civil Rights that are created / given without the rule of law or the consent of the people - Threatened - not at all - marriage is a defined institution that has prevailed for millenniums . . . why is this generation so bent on redefining it - greed? personal gain? Remember, when put to the voters, 20+ states said no change . . .

Calling anyone and everyone who disagrees with your peculiar position on an issue a "hater" is not a means of stimulating debate, but is a crude, childish, but unfortunately very predictable means of trying to silence dissent, without confronting the substance of the issue. Good people can disagree on issues without being disagreeable.

Well said, Will, I couldn't agree more.

I'd like to set aside, for argument's sake, whether or not the AG is in the right here. Let's stipulate that he's not. What has me shaking my head is that I'm convinced had the AG made a decision about some other issue, other than "gay marriage," there would be considerably less angst from our worthy bloggers and the Rhode Island Republican Assembly.

Language like "unprecedented attack on the Rhode Island Constitution" and "great miscarriage of justice and law" and "activist judges allowed unions" (whatever that last one means) betrays some real passion, and I remain unable to understand what inspires it.

Yes, I'd rather a ruling on a point of law come from a judge, rather than the Attorney General. But why, even if you think he doesn't have the right to make the decision, do you think he's made the wrong decision?

At last, Lynch gets one right.
I just wonder if this is the final nail in the coffin of what has always seemed to me like a gentleman's agreement between the two sides of the gay marriage issue in the General Assembly not to push the issue (yes, House Judiciary holds the hearing every year, but never moves the legislation). Here come the Carcieris, Murphys, Montalbanos and DePetros of the world - and the so-called "pro-family" lobbyists.

But why, even if you think he doesn't have the right to make the decision, do you think he's made the wrong decision?

You said it yourself - I'd rather a ruling on a point of law come from a judge - there is no law to base an opinion on - so rather then defer to the General Assembly and push them into action, he took action himself and created precedence which in turn can accidentally, without the will of the people ever being heard, become law

Rhody,

Actually, Lynch's action, ala Gavin Newsome, may just be the impetus for the General Assembly to finally take an affirmative stance to ban what they already assumed was not (and still isn't) legal in the state of Rhode Island. Sometimes going beyond the clear meaning of the law, even though it may get you what you want in the short term, in the long term, ends up backfiring badly. May I remind you that in every state where there has been a vote of the people or the legislature, same-sex marriage bans have passed?

mrh,

As far as I'm concerned, this issue stopped specifically being about gay marriage, and more about one man taking it upon himself to put his "opinion" in place of the law of our state. That can't be permitted, regardless of the issue in question.

The problem isn't per se that he made a "right" or "wrong" decision, it's that he's taken it upon himself to decree one. He has effectively used his limited executive power as a backdoor means of circumventing our state's laws to get to the legisative result which he prefers.

Let me put it this way, if there was a very conservative AG here (I'm dreaming), and he stated unilaterally that all abortions in Rhode Island are now illegal, using the logic that another state (i.e. North Dakota) has done that, don't you think you'd be a little miffed at that? Yeah.

mrh,

It's funny you quoted/mentioned the phrase "activist judges allowed unions." We had some discussion about that prior to putting out the press release, but were literally at a loss for words to describe it any differently.

I suppose the "passion," as you put it, isn't so much focused on specific issues that come up from time to time, though there are some for whom that is a "top-tier" issue in and of itself. Our concerns generally have a lot more to do (with conservatives, or anyone else who believes in the concept of "separation of powers") being against the practice of members from one branch of government usurping authority from other branches for their own ends. We aim to adhere to the concept that the Legislative branch, the Executive branch, as well as the Judicial branch (federally, as well as in each state), have very clearly defined functions and roles (i.e, passing law, executing law, interpreting law) under the United States Constitution, and as of 2004, under the Rhode Island Constitution, as well. We certainly don't believe in legislating by fiat, especially by a non-legislator.

We consider violating the SOP to be an attack on the legitimacy of the "original intent," as well as upon the written word of the Constitution itself. A Constitution is the basis of [any] and especially our constitutionally-derived republican form of democratic government in the United States. To sum it up: If the Consitution can mean anything someone personally thinks it means, there's very little sense for having one in writing.

Before I go to bed, a thought to ponder:

Does anyone think that Patrick Lynch wants to be another Gavin Newsome? What personality traits, besides nice hair, do they both share in common? perhaps we should ask their female coworkers. Is this a way for them to "make amends," a personal political calculation, or actually a sincerely held position?

The Board of Governors for Higher Education asked the Attorney General for an opinion on recognizing marriages legally performed elsewhere. The Attorney General gave an opinion. This opinion is non-binding but certainly acts as a strong recommendation and precedent.

If you disagree with the decision the Attorney General made, tell us why he should've made a different decision. Why should he have ignored comity and full faith and credit in his decision? Don't whine and complain about miscarriages of justice or unilateral action by Lynch. He did his job.

The opinion was given through proper procedures and methods. You can disagree with the result, that's fine, but don't take issue with the method when there's nothing to take issue with.

Go read the opinion. I found the section on Ex Parte Chace (1904) most interesting - it dealt with a marriage of two RI residents performed in Massachusetts that would've been against the law in Rhode Island. The RI Supreme Court decided that RI still had to recognize the marriage. With same-sex marriage, RI has no laws explicitly forbidding it, so the reasons for not recognizing the marriage are even weaker than they were with Chace.

While I am pleased with Lynch's opinion, it doesn't matter where you sit: this is fascinating stuff!

Regarding passion: There is an extent to which these social liberal causes have become inextricable from extra-constitutional methods (think abortion). Consequently, it doesn't capture the struggle involved to attempt to separate the method from the cause with respect to the emotions of those in opposition.

Of course, there's always the fact that some of us believe that marriage is a critical institution and that removing its opposite-sex (and therefore inherently procreative) nature will continue the lamentable trend of undermining it.

As for this: "RI has no laws explicitly forbidding it"... Although I've periodically provided statutes (see links in this post) in the RI law that clearly show marriage to be an opposite-sex relationship in the state of Rhode Island, I've yet to hear reasoning why that is incorrect or irrelevant. Full faith and credit, etc., begins to lose effect, I'd say, when states begin treating words in entirely new ways, which ties in to the passion — it's clear that the pro-SSM side of this debate insists that the law is whatever its ideology requires it to be.

To be honest, I haven't had a chance to read the full document, but I'd suggest that Lynch has provided further justification for believing that the "civil rights" argument for SSM will wind up trampling the rights of others in ways in which SSM advocates have long pleaded it will not (e.g., restricting religious freedom and property rights).

Do the people making the "full faith and credit" argument also believe that all states would have to recognize polygamous marriages, if one state were to allow them?

(This is only a question about FFaC, not the merits of polygamy, so "no, because studies show polygamy is bad" is not a relevant answer).

Aha!
Will:

As far as I'm concerned, this issue stopped specifically being about gay marriage, and more about one man taking it upon himself to put his "opinion" in place of the law of our state.

With respect, I don't think this is 100% true. I think some of Justin's comments indicate that the issue at hand is an aggravating factor in the debate.

For instance:

Of course, there's always the fact that some of us believe that marriage is a critical institution and that removing its opposite-sex (and therefore inherently procreative) nature will continue the lamentable trend of undermining it.

See, this is the debate I really want to have, although I respect Will's preference to focus on less interesting (to me) things like "original intent" and so forth. I don't know enough to know whether Lynch's actions are proper, constitutionally speaking (although if Jack is right, it sounds like there isn't that much to complain about).

It's not my blog, so of course we'll talk about what you guys want to talk about, but this:

To be honest, I haven't had a chance to read the full document, but I'd suggest that Lynch has provided further justification for believing that the "civil rights" argument for SSM will wind up trampling the rights of others in ways in which SSM advocates have long pleaded it will not (e.g., restricting religious freedom and property rights).

is fascinating. How does same-sex marriage infringe your religious freedom or your property rights?

Do the people making the "full faith and credit" argument also believe that all states would have to recognize polygamous marriages, if one state were to allow them?

No, because I think the common argument is that a state is obligated under FFaC to recognize only marriages from other states that would be legal under it's own laws.

That seems like a non-controversial position.

Justin -

As you have said, when the RI statutes regarding marriage were written same-sex marriage was never contemplated, which is why the statutes speak of the "female party" and the "male party". I think this lack of contemplation is different from the state explicitly prohibiting same-sex marriage. Since same-sex marriage has begun to be contemplated, RI law has not been amended to say that same-sex marriage is prohibited, despite ample opportunity for the legislature to do so since same-sex marriage was explicitly recognized as legal in MA.

Andrew -

RI would not have to recognize polygamous marriages, even if another state allowed them, because RI law does explicitly prohibit polygamous marriage in RIGL s. 15-1-5.

i think it's important to note that lynch's opinion is just that: an opinion.

a few years ago, lynch was asked to issue a similar opinion but was much less clear in his language, which in my opinion held up the debate and delayed what will ultimately have to be action by the general assembly.

hopefully this opinion will move the debate along beyond the lobbying phase and into determining legislation.

Will, I just hope your omission of the same-sex marriage ban going down to defeat in Arizona was an unintentional one.
Also, if you look at the votes of the states that put the issue on the ballot in '06, they often ran closer than the '04 votes did. If it goes to the ballot in Rhode Island (or Mass.), I wouldn't bet a penny on the outcome either way. And once one state breaks the anti-gay marriage forces' momentum (if you don't consider Arizona, whose amendment some considered too broad, a clean victory)...

Will
I used the term "Gay Haters"
On Feb 14, Justin used the term "Bush Haters"
Only right-wing nut-jobs,can use the
word "Hater" ??

The Attorney General has statutory authority to give such opinions under sec. 42-9-6. That being said, this matter is presently before the R.I. Supreme Court in the divorce proceeding that was certified by Chief Judge Jeremiah.

Typically, when asked to opine on a matter that is also before the courts in pending litigation, the Attorney General would decline to provide an opinion. If he wished to take a position on behalf of the State, he could do so by particpating in the litigation as amicus curiae.

Perhaps Lynch will be asked why he chose to issue an opinion rather than deferring to the Supreme Court on this controversial issue.

mrh,

You are correct that there are many conservatives (i.e., Justin) who perhaps place more emphasis on the role of procreative marriage than on the nuances of the law. There are social conservatives, economic conservatives, neo-conservatives, and plain old conservatives. Some conservatives place more emphasis on certain issues than others. Conservatives don't believe monolithicly on a great many issues.

Rhody,

Thank you for the clarification regarding AZ. As you alluded, I think there were some specific reasons for its defeat, rather than an actual sentiment by a majority of the electorate in favor of same-sex marriage.

brassband,

Thank you for making the point that it should not have been the AG's perogative to take this on his own to interpret Rhode Island law, without deferring to the judicial branch. I think we all know that Lynch isn't going to be voted Lawyer of the Year anytime soon.

My problem is that even though "it's just an opinion," it's an opinion that's effectively being given the power of a legislative act, by being put to actual use by the BOE. I don't believe in government by decree. If RI wants to make it legal, then pass a law!

Will
The term "Bush Hater" is OK

The term "Gay Hater" is not ?

Conservatives don't believe monolithicly on a great many issues.

Indeed. Neither do liberals. But I think we can all agree that Jeremiah S. Jeremiah has a funny name.

(I appreciate your response, Will, and I'm interested to see whether Justin will respond.)

Steve L,

So you want an answer... I'll give you one then.

Actually the term "Bush Hater" is quite accurate, as it refers to people that literally hate President Bush.

On the other hand, the term "gay hater" is not at all representative of the vast majority of people who are not in favor of same-sex marriage. Just because one favors original intent, religious convictions, or millenia of tradition, does not a "hater" make. Other than that basketball guy recently, I don't think I've ever heard someone literally say they "hate" gay people.

Jon wrote:

I think this lack of contemplation is different from the state explicitly prohibiting same-sex marriage. Since same-sex marriage has begun to be contemplated, RI law has not been amended to say that same-sex marriage is prohibited, despite ample opportunity for the legislature to do so since same-sex marriage was explicitly recognized as legal in MA.

It strikes me as odd that a group's declaring that it has a right to marriage under a definition that has never applied to marriage ought to be considered to have more weight than a group's arguing that it has a right to something that has been explicitly denied. Frankly, it's unlikely that the authors of RI law did any contemplating at all with respect to the opposite-sex definition of marriage. It's the definition.

If you're implying that Lynch's finding was correct, I'd suggest that you've pushed this odd principle beyond credulity. It is not as if the legislature has never taken up the question. Indeed, there's a bill on the current agenda that would define marriage as an opposite-sex institution. It is furthermore not as if the debate has been occurring with anything other than the presumption that, pending further action, same-sex marriage does not exist in Rhode Island.

Do you see why this appears to be a rigged game? If SSM wins the argument right away, then it wins; if it doesn't, it keeps trying. But if the opposition to SSM doesn't win right away, then it loses.

Steve L,

I've gotten the impression that some liberals hold the views that they do because of an inability to observe distinctions between things that are different. You appear to be one of those liberals.

It is one thing to accuse somebody of hating a specific person; it is another to accuse him or her of hating a category of people. It is also one thing for me to prod those who hate Bush by citing a specific policy or outcome that they oughtn't hate; it is another for you, unprovoked, to slander those who oppose same-sex marriage as bigots.

Your comments are no longer welcome here — not because of your deficiency in analytical thinking, but because you were presumptuously rude and insulting to your host.

MRH,

I'm happy to respond (although you'll have to understand that I don't have access to a computer throughout the workday). But I've been participating in this debate for several years now, stringing together more words than I care to review right now and debating every angle of the question with a variety of opponents. In other words, I'll need you to let me know what it is you disagree with — vis-a-vis the "debate you would like to have" — in the position that you believe me to take.

If the question to which you desire response is the one regarding religious freedom and property rights, I offer you the not-so-hypothetical examples of a Christian organization that places adoptive children only with married couples and the business that only prints invitations for marriage ceremonies. In either case, with the civil-rights argument, that religion or that business has a definition of marriage — one that relates directly to their beliefs about the relationships that they are encouraging — that would, overnight, be invidious discrimination.

"Perhaps Lynch will be asked why he chose to issue an opinion ..."

Because he's looking for a headline? Just a wild guess.

Good morning all - In today's ProJo, we see that there is a personal/family connection to the AG's ruling - Yes we all know he said that his sister had no impact in his thought process, although the week ago wedding must have still been fresh in his mind - We also find out that he and his staff went back to a 1904 "Court Ruling" to base his opinion on - What? AG Lynch & company did not like the 1991 Defense of Marriage Act LAW that the Democrat controlled Congress passed and President Clinton signed into law - so he chose a judges opinion instead?

Quick correction - DoMA was a 1996 Law

http://en.wikipedia.org/wiki/Defense_of_Marriage_Act

Justin,

Thanks very much for your response. I'd never heard a coherent argument about how same sex marriage threatens "religious freedom and property rights" before, so I appreciate your examples.

If the question to which you desire response is the one regarding religious freedom and property rights, I offer you the not-so-hypothetical examples of a Christian organization that places adoptive children only with married couples and the business that only prints invitations for marriage ceremonies. In either case, with the civil-rights argument, that religion or that business has a definition of marriage — one that relates directly to their beliefs about the relationships that they are encouraging — that would, overnight, be invidious discrimination.

Two very interesting cases. I'm going to have to think about my response a bit. I think your hypothetical invitation company ought to be free to refuse any customer they want, and I'll have to think a bit more about the Christian adoption agency.

In my view, these are two examples of groups that are indefensibly discriminating against homosexuals. From my own personal moral point of view, I have no sympathy for them if, in a hypothetical world where two men can get married, they are barred from such discrimination. In general, my sympathies attach more strongly to the victims of discrimination than to agents of discrimination. As a matter of law and policy, however, it's a bit more complicated, and I need to mull it over a bit.

Thanks for engaging, though. I'm generally disheartened by blog comment sections, but your willingness to have a conversation is a welcome thing.

"In today's ProJo, we see that there is a personal/family connection to the AG's ruling"

I stand corrected. A headline and he benefits a family member with the power of his office. In the Lynch family, that's definitely a win-win.

One other item. This heathen would once again like to note an instance of disrespect shown to the Christian faith - in this case, the day that the AG chose to release his Opinion.

CMTR:

DOMA was a 1996 law passed during the Gingrich era and signed by Clinton, who was seeking re-election later that year. It 1) defined marriage, for federal purposes, as being between one man and one woman, and 2) stated that no state is required to recognize same-sex marriages performed elsewhere.

In essence, the only thing it did for Lynch was say that the State is in no way forced by federal law to recognize same-sex marriages. It doesn't outlaw such recognition, except for the federal government.

Citing a 1904 case is perfectly acceptable. Lynch's opinion cites cases from nearly every decade of the past century. An argument's rationale does not rot with age.

As for Lynch's sister: the first thing to say is congratulations - this must've been a big moment in her life. Beyond that, I'm sure the fact that he has a lesbian sister plays some role in his subconscious, but he's a lawyer. He's writing a legal opinion, not a moral one.

For more on DOMA: http://www.lectlaw.com/files/leg23.htm

To read Lynch's opinion:
http://marriageequalityri.files.wordpress.com/2007/02/2-20-07ag-ltr-to-comm-warner.pdf

"An argument's rationale does not rot with age."

This happens to be true of the rationale for the special status of the social institution of marriage which is the combination of A) integration of the sexes and B) responsible procreation.

Yet the SSM campaigns seeks to replace that longheld rationale in favor of some substitute that is nonconjugal at its core.

No coherent argument has been offered for that proposed reform.

Sure, the SSM proponents have oferred a great deal of claims based on a false equivalency without acknowledging the goal of replacement.

The SSM campaign is like Jan Brady: "Marcia, Marcia, Marcia." They should instead make SSM stand on its own two feet instead of riding on the back of the social institution of marriage.

Speaking as an SSM supporter...
If Lynch says his sister's situation didn't have an impact on his position, he's disengenous at best and a lying sack at worst. Many people who support SSM once opposed it, and changed their minds through a family member's experiences. If it's ever legalized in this state, it sure won't be through his leadership.

Exactly, Rhody. Well said.

The Opinion Lynch issued three years ago was the essence of equivocation and telegraphed a real aversion to taking a stance on the issue, presumably out of fear of alienating a block of voters on one side or the other.

A week after his sister gets married, he issues a legal Opinion coming down in favor of SSM. And we're supposed to believe it's unrelated (pun intended)? It's just not credible.

Rottles,

I take a stab at responding to your point here.

To Justin: I'm going to leave a lengthy comment here. I hope that it prompts a useful discussion. If it is too long, please advise and I can resubmit a shorter comment.

=========

mrh, it's "F. Rottles", not Rottles. No biggie, but it is my name afterall. Thanks.

=========

mrh, I read your post via your hyperlink and I have attempt to add my own comment at your blog. Unfortunately, it has not taken.

Here, I'll say this:

No one denies same sex couples the right marry. They deny it themselves. No two men, and no two women, are capable of forming the conjugal relationship of husband and wife.

What you refer to as discrimination is just discrimination, not unjust discrimination, on the basis of marital status.

The man-woman criterion of marriage does not prohibit on anyone on the basis of "sexual orientation". The Goodridge majority opinion conceded that much, as have courts throughout the country. It is common sense.

The SSM argument is that if marriage is to be treated with a special status, then, the homosexual relationship must also be treated with a special status. But this is based on false equivalency.

The conjugal relationship integrates the sexes; the homosexual relationship is sex-segregative.

Marriage provides for the contingency of responsible procreation. This is combined with sex integration and forms the core of marriage recognition.

What is the core of the homosexual relaitionship? If it includes children it is based on attaining children via parental reqlinquishment or loss. That is not the core of marriage recognition and, according to SSM arguments, it is not the core of the special status sought for the homosexual relationship.

Why should society treat marriage like it was the homosexual relationship? And which type of homosexual relationship -- the man-man or the woman-woman? For these two types of homosexual relationship are not in fact equal in terms of procreation, for a starter. And neither are equal to the relationship of husband and wife on that basis.

As for adoption agencies that prioritize placing children with married couples, or with adoptors who would not reject marriage, they operate not just on government money. They are not like highway construction contractors. The funds are the least of the concerns in Justin's scenario. The state authorizes the agencies to provide adoption services. If that is denied, on the basis of the SSM claim, then, their prioritization is wrongly penalized.

And, no, it is not merey a matter of labelling SSM as marriage. That would just mislabel nonmarriage as marriage.

If the state replaces recognition of marriage with recognition of some other thing that is based on the homosexual relationship (and extend to all conjugal relationships), that would need to be justified. And from that justification, perhaps you might create some reasonable basis to deny adoption licenses to agencies who priotize placing children in homes that can provide both mothers and fathers to children in need.

Such agencies have a higher standard. To push them out of adoption sevices would be to victimize the children who the state is supposed to be putting first. Thusfar the attacks of Catholic Charities, for example, have been all about the assertion of an adult right to adopt. The fostercare system is not a resource for a gay affirmative action program. It is about the children and discriminating against these agencies would victimize those children.

You say that you'd stand on "a moral preference for equality and justice over inequality and injustice."

There is no unjust discrimination in either the priorities of the adoption agencies nor in the marriage law.

You referred to segregationists. The old laws that punished interracial marriages were part of a system that selecltively segregated the sexes on the basis of a racist identity filter. Treating SSM as if it was marriage would bring back selective sex segregation, but this time on the basis of the gay identity filter. Pressing either into marriage recognition is unjust.

I'd anticipate that you, like most SSM advocates, wish to equate sexual orientation with race. But there is one human race and it is two-sexed. The natures of humankind, of human community, and of human generativity are both-sexed, not one-sexed. The analogy with Brown is mistaken, profoundly flawed, and misleading in the way you have used it.

The other thing to note is that besides the denial of what marriage is, and then substituting recognition of some other thing, your reply to Justin mistakes religious freedom for the entire category of freedom of conscience. That freedom rises far above the supposed right of two men or two women to marry. It is a contrived right, not an actual right.

A freind of mine sums up the situation thus: the choice to form a nonmarriageable arrangement, such as a homosexual relationship, is a liberty exercised, not a right denied. Demanding that society treat nonmarriage like marriage is a question of social policy, not constituional interpretation. If you would create a legal right (i.e. rather than recognize a constitutional or human right) within a system of laws that treated all domestic arrangements as the same, then, sure you could claim such a right. But that is not a right to marriage. It is a claim to merging nonmarriage with marriage. And that returns us to the distinction between discrimination on the basis of marital status, just and unjust.

You may feel there is more harm done by refusing to prioritize the homosexual relationship type. I do not see what good is done by pretending that the homosexual type is the basis for marriage recognition rather than the core of the conjugal relationship. Abolishing the man-woman criterion of marital status would deny marriage recognition to all of society. Merging the one-sex arrangement with marriage, under some false equalivalency, would do harm to society. We can see this emerging in Canada where a court awarded parental status to three adults over one child. It was done on the basis of the enactment of SSM.

You said that "extending marriage rights to same-sex couples is a simple question of civil rights." But it is not. And it is not about extending marriage. Rather it is about replacing marriage. That is what you need to justify. And then you need to justify the discrimination that would flow from that replacement.

You then go on to confuse infertility with the choice to form a homosexual relationship. Infertility is a disability, and I doubt you would claim that homosexuality is a disability.

Ferility varies. People are born non-fertile, become fertile, experience sub-fertilty, and eventually their potency diminishes to naught. But an individual alone is not fertile. The individiual may be fertile with the other sex. A couple is fertile, subfertile, or infertile.

No man-man or woman-woman combination is fertile except with the other sex. Hence, these combinations cannot be infertile. They were never fertile in the first place.

Understanding fertility for what it is is helpful in understanding marriage for what it is. Fertility integrates the sexes and, based on the nature of humankind, integrates man and woman in community first within the family and then beyond. From this arises the contingency for responsible procreation which begins with conjugal relations and extends to the mother and father, together, being directly responsible for their progeny (barring tragic circumstances), including the caring and education of their flesh and blood.

The two-dad or two-mom arrangement depends on parental relinquishment or loss. It does not flow from infertility. It flows from adult choices to form sterile relationships.

(I use the word sterile not in a derogatory way just as you would not use infertile to disparage disabled couples.)

If you would imagine that the infertile must be discriminated against to justify marriage recognition on the basis of responsible procreation, then, I think you'd imagine a blatant case of unjust discrimination. Same thing applies to discrimiating against the elderly. It is the nature of the human being to mature and that is no small part of the marriage idea of "in sickness and in health" especially in terms of creating and raising children with one's husband or wife. Edlerly couples, like disabled couples, do not overturn the core of marriage.

I would add that no two men and no two women can actually engage in sexual relations. Calling their sex-related behavior, sexual relations, is to mislabel what is essential masturbatory acts. And while such acts are possible in conjugal relationships, such acts do not define conjugal relations. Maybe there is an excellent reasons to elevate such acts in defining the idealized homosexual relationship type and then creating a new relationship status that is preferential. But it has yet to be put forth by advocates of SSM.

Rather a false equivalency is repeated. If you have something new to add on that score, I would find it interesting to read.

Maybe such a relationship status could coexist with the special status of the conjugal relationship. I don't see why the two need be merged, at law, or in social policy. But if there is merit, then, make the case for that.

You said, "Homosexuals are, by and large, going to refrain from marrying members of the opposite sex and reproducing with them whether same-sex marriage is legal or not."

So this would not justify the new relationship status. Something else might.

Now, here I have not grounded my comments on religious beliefs. I have described marriage is pluralistic terms. It is important to recognize that it is perfectly legitimat for religious beliefs to inform social policy. Our laws are expressed in secular terms for reasons that serve pluralism, rather than sectarianism.

It would be unjust, and disorderly, to supplant pluralism for the sectarianism that is often espoused by people who assert that laws can sprout only from purely secular origins. The irreligious amongst us are not the superior lawmakers.

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