Marriage However They Want It

Yes, there are distinctions, and obviously, it is possible to argue both points simultaneously, but consider the circumstances that some early federal judicial rulings on same-sex marriage have created. A judge in Massachusetts has declared that the U.S. Congress and President cannot define marriage for the purposes of federal law, because the Constitution leaves the definition of marriage to the states. Now, a judge in California has single-handedly insisted that the people of that state, following the process of changing their constitution in order to affirm the definition of marriage as a relationship between members of the opposite sex, have violated the national Constitution.
Perhaps I’m not alone in inferring that the game is rigged and in taking this instance as evidence of the broader relentlessness of a ruling class that disagrees with the people of, by, and for whom the government is supposed to exist. On the blog Gay Patriot (via Instapundit), B. Daniel Blatt highlights some evidence that Chief U.S. District Judge Vaughn Walker ruled based, above all, on his own value system, rather than the law or the consensus of Americans:

Whoah, this guy is given more to popular jargon that to constitutional interpretation:
“the evidence shows that Proposition 8 harms the state’s interest in equality, because it mandates that men and women be treated differently based on antiquated and discredited notions of gender.” Antiquated and discredited notions of gender? Discredited by whom? Sociologists writing in the 1970s, inventing a social construct out of thin air?

Commenting to a related post on the Volokh Conspiracy, Bart DePalma extrapolates the broader oligarchical question well:

The federal courts are not doing the Dems any favors.
Missouri’s Prop C showed that the voters are already in full rebellion over an imperial Congress taking control of their health insurance against their will.
Then, last month, a district court judge in AZ decreed that the most popular law in the country — Arizona’s attempt to enforce federal immigration law — was likely unconstitutional because it would be contrary to Obama policy not to enforce the law.
Now, a district court judge in San Fran has literally decreed that homosexual unions are marriages and the voters of CA were irrational to vote otherwise.
The courts may have just added law and order and social issue voters to the tsunami already headed to the ballot box in November.
How many more times does the ruling class think voters can be denied before there is a revolution — first at the ballot box and then if that fails on the streets?

If I may paint in even broader strokes: Incremental imposition of a national worldview — which is not very far, at all, from an organized religion — had served progressives well for a number of decades, as they infiltrated opinion-forming sectors of society, such as education and entertainment. By that method, they numbed and isolated their opposition. By a more political method, they drew in constituencies wanting some change to the order of American society, whether by encouraging dependency on government or picking the sides in cultural battles that appeal to our most basic desires and disruptive impulses (sex most prominently).
In recent decades, cultural conservatives aligned with civil libertarians and began building means of conveying their ideas even when locked out of more traditional media. At the beginning of this millennium, I’d have wagered that the conservative arguments thus promulgated would gradually win the day against the bankrupt and totalitarian ideas of the Left, and that the discoursive struggle would be between the right-leaning erstwhile allies. Unfortunately, the combination of 9/11 and President Bush’s “compassionate conservatism” confused the trend and ushered in a far-left Democrat Congress and President Obama, who slithered into office on a centrist lie and a stolen dream.
Perhaps liberals have lost faith in incrementalism and are attempting to leap several rungs of the ladder at a time. Or perhaps conservatives are now better positioned to respond to the usurpation of our civil society. Whatever the case, big questions have been brought forward for pivotal answers, and support for immediate outcomes could come at the cost of much more fundamental concerns.

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Sammy
Sammy
11 years ago

Steve Laffey’s on Gays
In one column, Laffey said he has never seen a happy homosexual.
“This is not to say there aren’t any; I simply haven’t seen one in my lifetime. Maybe they are all in the closet,” he wrote. “All the homosexuals I’ve seen are sickly and decrepit, their eyes devoid of life.”
In another column he wrote that pop music was turning the children of America into sissies, and criticized the singer Boy George, referring to him as “it.”
“It wears girl’s clothes and puts on makeup,” he wrote. “When I hear it sing, ‘Do you really want to hurt me, do you really want to make me cry,’ I say to myself, YES, I want to punch your lights out, pal, and break your ribs.”
NOTE, PUNCH YOUR LIGHTS OUT, AND BREAK YOUR RIBS

Fredric the "meh"
Fredric the "meh"
11 years ago

I was going to make this argument about the first part of your post (because the second part is so deliriously incomprehensible that I’m chalking up to the heat), but Juan Cole made it for me.
“Legislating a reduction in the rights of some so as to avoid offending the majority is a tyranny of the majority. It is an evil temptation within any democratic system. Madison thought that representative government could temper the passions of direct democracy and so perhaps avoid the worst excesses of majoritarian oppression. The California referendum system that allowed a popular vote (bought in part with Mormon funding) to over-rule the government of California is precisely the sort of outcome Madison feared. “

Justin Katz
11 years ago

It has nothing to do with “offense.” The equality argument of SSM advocates is a misconstrual of the notion of rights. Homosexuals have every right to enter into marriages, as marriage has been defined. What they are claiming is a right to redefine the relationship described by marriage — that between a man and a woman, which is inarguably unique in that only such relationships can create children almost inadvertently. What they are claiming, further, is that such a right of redefinition trumps not only the right of the voters of the United States to elect leaders who will insulate national policy from the social experiments of individual states, but also the right of the people of a particular state from amending their constitution to affirm the unique relevance of such relationships. The concept of “rights,” at this level of detail, is such that any particular policy can be cast as a right or as a violation of rights, and judging between these claims is precisely the heart of self-governance and majority rule. What has now been proven is that a ruling class, acting on an agenda that is still quite radical, will strive selectively to protect a privileged minority from the “tyranny of the majority” that you describe, perhaps even to the point of requiring the people to achieve a Constitutional amendment. (When we get to the point of that battle is when the heat will really begin.) Consider that many of the same constituencies that wish to protect the homosexual minority from the tyrannical majority — across nations, centuries, and cultures — that has defined marriage as an essentially procreative relationship have no trouble whatsoever allowing the majority to vote for tax-paid goodies from a wealthy minority. As with the distinct SSM rulings on the East and West… Read more »

triplerichard
triplerichard
11 years ago

Justin please explain how tow people of the same sex getting married and having the same rights as anyone else is a danger or attack on the institution of straight marriage. You will still be married to your wife, i will still be married to mine and those straight and gay couples that choose not to procreate or can’t procreate will still be married as well. It does not seem that dangerous or radical of an idea to me. You need to face the fact that you want to deprive a certain group of a right that you and most of America have.

Tommy Cranston
Tommy Cranston
11 years ago

“Justin please explain how tow people of the same sex getting married and having the same rights as anyone else is a danger or attack on the institution of straight marriage. ”
Sure. We have to pay for this sickness. It’s another unfunded mandate that will cost taxpayers untold billions in SS and public employee health, tax and pension benefits.
Anyone familiar with the “males” in the teacher unions knows there will be a whole lot of weddings taking place if this decision is not flipped.
Oh, by the way, how does bigamy pose a “danger or attack” to you?
I guess the left, in its longstanding violent persecution of bigamy “needs to face the fact that you want to deprive a certain group of a right that you and most of America have”.?

triplerichard
triplerichard
11 years ago

Dear Tommy, as a male teacher I can assure you that yes we have some gay members in our union but most of the guys that I work with are happily married to women. You Tommy sound like a real smart fellow. Please fill me in on the violent attacks upon bigamist’s by America’s left leaning people. And once again Timmy, how would two men or women getting married effect the quality of your marriage in any way shape or form.

Justin Katz
11 years ago

Richard,
I’ve answered that question so many times, and in such detail, here, on Dust in the Light, in the Providence Journal, and in National Review that it’s simply not possible that you lack the Google skills to learn my response.

rhody
rhody
11 years ago

Saying that gay marriage does not harm straight marriage is like saying the sun rises in the east, so I have another question:
Was it arrogance or hubris that led the Prop 8 lawyers to put up such a lame argument in favor of it? How could the judge NOT rule against them?
Or are they just assuming the Supreme Court will ultimately deliver them from “evil,” and they don’t want to give away their real arguments til then? That’s taking an awful big change that Kennedy won’t be the swing vote, or that Scalia’s libertarian streak won’t come out.

David P
David P
11 years ago

What is “lame” is this judge’s pretending that the fourteenth amendment has anything to do with redefining marriage. It is simply ludicrous to contend that the Congress that proposed the amendment or the states that adopted it in 1868 had in mind the legalization of SSM at a time when sodomy laws were not only on the books but were regularly enforced.

Swazool
Swazool
11 years ago

500 people get married in Las Vegas every day. Now everyone of those marriages have been devalued! The horror

triplerichard
triplerichard
11 years ago

Justin I just googled this topic, ” why is Justin Katz afraid to let gay people have the same rights as others.” Strangely enough google was unable to answer the question muck like yourself. It good to see that you have reasonable thoughtful people on your side like Tommy.

Joe
Joe
11 years ago

Quick lesson in constitutional law:
The Bill of Rights is there to protect minorities from the tyranny of the majority. That is to say, just because the “people” want something, does not mean they can have it. For instance, consider that most people at one time, at least in some places, wanted segregated schools. Does anyone on this message board think that majority was right, or even that they should have been allowed to have it, just because they wanted it? Of course not. The constitutional protects minorities from the prejudice of the majority, so let’s not get all indignant that a judge said state discrimination, even if popular, is unconstitutional.
Second, the Equal Protection Clause says that everyone gets the equal protection of the laws: state discrimination must be justified. It must be rationally related to a legitimate state interest.
This isn’t about redefining marriage. You can call it whatever the heck you like. The issue is about the government providing a benefit to one group and not to another. All of you who are so opposed to SSM, the sole issue here is why the difference? What can justify this?
And before you all shout out at once, the lawyers for Prop 8 put on two witnesses who provided minimal justification (one wasn’t even there to address the differences between same sex and heterosexual marriage). So one witness, and even he said that denying marriage to homosexuals is denying a tremendous benefit to a whole class of people.
Again, though, let’s just remember that the issue is just about why we will marry straight people but not gays. Everything else is irrelevant.

David P
David P
11 years ago

Thanks for the quick lesson. Here’s another one.
The fourteenth amendment does not prohibit all disparate treatment. It is clear that the people who actually enacted it never contemplated reaching this issue. When judges stretch the plain meaning of constitutional language to enact their own personal policy preferences, they are committing an offense against the Constitution and against republican government in general.
There is abundant rational basis for maintaining the definition of marriage that has existed worldwide for thousands of years. The family is a critical institution for socializing children, for providing care to the young, the old and the infirm and for passing on the traditions and heritage of society. There are inherent differences between men and women that make it advantageous for children to be raised by one of each.
It doesn’t matter that not all marriages produce children or that many couples do a poor job of raising their children. A law can pass rational basis review even if it is under-inclusive or over-inclusive.
What this country needs is for its citizens to take their responsibility seriously; to be vigilant against judicial usurpation of the political process; to become conversant with the Constitution as opposed to the collection of judicial commentary known as “constitutional law;” and to hold officials accountable when they appoint and confirm outlaws like Judge Walker to the bench

Justin Katz
11 years ago

Joe,
The reality that SSM advocates studiously ignore is that homosexuals are not denied any rights whatsoever unless they first change the definition of marriage. They are entirely free to enter into opposite-sex marriages. Most choose not to do so, for obvious reasons, but that’s they’re choice.
There is only one pairing in human society — indeed, in the entire animal kingdom (any exceptions proving the rule) — that can, by its nature, create future generations. What you and SSM advocates are arguing is that human society cannot acknowledge that fact and seek to make such relationships stable and desirable — even if they do so with only the application of the title “marriage.”
Marrying “gays” or “straights” is a divisive distraction. The core fact of marriage is the nature of the relationship, not the identity groups of the people who enter it.
For illustration, let me beat you to a common objection: Some would argue that there’s no difference between what I’ve written and the suggestion that people of color are not facing discrimination if they are all equally allowed to marry people “of the same race.”
The only practical argument for such a law would be to discourage mixing races, which our nation clearly does not recognize as legitimate. And, indeed, even absent a right to marry, mixed couples are still fully capable of having children together, making marriage the preferable circumstance within which for them to do so.

Andrew
Editor
11 years ago

Joe,
The analogy to racial segregation doesn’t hold. Government cannot get into the business of segregating by race, or enforcing other racially-based laws, without creating the rules of who belongs to what race, which it should ideally never do. The same is not true of gender. Government doesn’t create or even shade that distinction. Declaring that it is inherently unequal to recognize that man-woman relationships are different from man-man or woman-woman relationships, and therefore that government is not allowed to make a distinction, is the same as declaring that government cannot recognize differences between women and men, because that too could lead to unequal treatment.
Judge Walker was obviously aware of this — which is why he took the extraordinary step of ruling that men and women are interchangeable in their marriages. That is an awfully sweeping and personal belief for one Judge to write into Federal law, and nothing in our system of government gives a Federal Judge meaningful authority to do so.

brassband
brassband
11 years ago

If the Fourteenth Amendment prohibits gender-related classifications, why did we need the Nineteenth Amendment?

joe bernstein
joe bernstein
11 years ago

In Lawrence vs.Iexas where Kennedy voted with the majority the question was about sodomy between consenting adults.Different than the question of same sex marriage because sex between consenting adults is (presumably)something that occurs in private and in which the government has no right to be involved,while marriage is a matter of public record and is subject to various laws and regulations,even putting aside the question of same sex marriage.
This was why I opposed the off street prostitution law as an intrusion into privacy,while supporting prosecution of on street prostitution because it endangers the public.
I have little interest in this whole question because I am not gay and my closest gay relative is a cousin I’ve seen three times since 1970.
I’m more concerned with immigration,firearms rights,and foreign policy,particulalry as applies to dealing with terrorists.
I guess civil union is the best answer,but it seems positions are getting set in concrete.
There’s a few “gay”couples,male and female,in my neighborhood and they seem nice enough as far as I can tell.Never caused any problems,which is more than I could say for the drug addict who used to live across the street.
I’d as soon see sexual preferences remain a private matter between adults.
A few years back,the Attleboro PD “raided” a bondage club.What a waste of resources.I mean,I don’t get it how people get turned on by restraining each other and treating each other like s**t,but I’m sure they don’t care what I think anyway.
Maybe because I routinely used handcuffs and leg irons on my job,it would strike me like a hamburger cook being offered a Big Mac.

Joe
Joe
11 years ago

David P, it is not at all clear that the people who wrote the Fourteenth Amendment did not envision reaching this issue. The amendment states, in relevant part, “nor shall any state…deny to any person within its jurisdiction the equal protection of the laws.” If those who passed this amendment intended for it to apply to only slavery or to only gender or to only whatever, they certainly could have written it that way. They did not. Rather, they left this rather vague phrase in the first section. Indeed, they left it for the courts, which were then and are now in the business of interpreting constitutional amendments. That’s simply what courts do: they interpret the vague language in the constitution. Yet it seems that whenever courts try, in earnest, to give content to the unclear language in the constitution, they are attacked by people who claim it is judges just asserting their own personal, “policy” preferences. Look, I’m just not sure what else you take the phrase “equal protection of the laws” to mean. How would you interpret it? I get that the majority may not like that there is a judiciary to apply the limits of the constitution to the whim of “the people,” but hey, that’s a constitutional, representative democracy for you. Also, as for your claim that “the family” is something the state should encourage, it assumes that homosexuals and homosexual relationships cannot provide that. Your claim on this message board has as much proof and evidence behind it as SSM opponents presented in court: none. Justin, your argument seems to hinge on the premise that homosexual relationships are inferior to heterosexual relationships when it comes to raising children. So—and I say this to David P as well–let’s hear it. Let’s hear the argument why. Judge… Read more »

Justin Katz
11 years ago

I didn’t say that heterosexuals are better at raising children, and my position on marriage does not require broad qualitative judgment between types of relationships. On the former point, the target of a strong marriage culture is those who, by the nature of their activities, can create children; by its nature, same-sex marriage eliminates the notion that marriage and procreation are linked.
On the latter point, it is enough to note that they are different. In the ideal, children should be raised by their own mothers and fathers. The SSM movement insists that it is bigotry even to have that ideal, whatever the unique benefits that actually accrue to it.

Justin Katz
11 years ago

At any rate, it is absurd to insist that a universal definition of marriage must be substantiated in terms of social science with suitable rigor to stand up in a courtroom. Especially when you arrive at that requirement by asserting (1) that men and women must be interchangeable, and (2) that the categorical ability of two people to create children is of no consequence.
The only adequate proof is social and cultural, with the case for same-sex marriage being made over time. That’s what democracy and federalism are meant to allow. In other words, I refute the notion that a handful of judges are adequately divine to determine such socially fundamental matters. In that regard, the SSM movement is merely an extension of statism insisting on the possibility of central planners.

David P
David P
11 years ago

I think it’s obvious that those who drafted and adopted the Fourteenth Amendment never intended it to mandate SSM since nobody thought to apply it that way until a few years ago. As to proving which family structure is more beneficial to society, there is no need to prove that in a court of law. Rational basis is a standard of deferential review. It is sufficient that there be some basis for the decision taken by a legislature or, in this case, the electorate. The idea is that controversies of this type should be settled politically, not legally. If you deny that there is any basis for the voters of California to support the ideal of family that has been accepted for thousands of years then you are as blinkered as the “judge” that authored this opinion.

Andrew
Editor
11 years ago

Joe,
You didn’t quite get what I am saying. I’m saying that it’s wrong for government to treat people differently based on collective categories that it plays a large (though not exclusive) part in making up, but that gender is not such a classification.
Here’s the basic example: Pre-desegregation, which school would a child who had one African-American great-grandparent have to go to? To answer that question, the government had to get into an ugly and imprecise business of making up definitions of race. You could write a treatise, as long as Judge Walker’s opinion, on the subject of whether race exists at all, which is a very powerful argument that government shouldn’t be defining it, in order to deny people opportunities.
But there is no such ambiguity with gender, there are differences between men and women that can’t be changed by the state. The law is allowed to recognize this, because it’s not a legitimate function of government or the law to try to erase all meaningful distinctions between individuals.

Joe
Joe
11 years ago

David P, while rational basis review is deferential, it is not empty of substance and it is surely not just saying that whatever classification is at issue should be handled politically. There are certain justifications that cannot pass rational basis review, certain ends that are not legitimate. Just look at the sodomy law cases. Moreover, I am saying precisely that the voters of California did not have a rational basis for believing that the denial of marriage benefits to homosexual couples would achieve a legitimate government interest. But hey, I’m willing to listen. Andrew, I think I see more clearly what you are saying, but the fact remains: government involvement in defining the class is not the only reason government discrimination must be justified. All government discrimination must be justified. Which leads us to Justin’s points. Justin, the government has a legitimate interest in making sure marriage and procreation are “linked” in some way? Never mind that that link is attenuated both because some married people don’t have children and many unmarried people do; I’ll cede the point that they have been linked historically (and even evolutionarily if you prefer). I just don’t see why the government has an interest in promoting that link, for its own sake. It seems to me what the government has an interest in promoting is stable relationships that its citizens choose to enter into and raising kids in loving homes. So again, I guess I just cannot see a rational basis for believing the denial of marriage benefits to homosexual couples will achieve a legitimate government interest. But maybe I’m just “blinkered,” as David P says. As for your second point, I don’t think I understand it. Are you saying that government recognition of (and support of) marriage does not need to be justified… Read more »

Andrew
Editor
11 years ago

Joe,
There’s no invidious discrimination involved, if you accept the premise that men and women are different — which is why Judge Walker had to go to extraordinary lengths to deny this point. I am curious: are you really comfortable with parts of the ruling where the Judge says that men and women are interchangeable in their marriages, and with writing that principle into Federal law?
My broader answer to your question is that I believe it is a mistake to conceive of government as an institution that has unlimited power to change any other institution in society. We do recognize that government, at least here in the West, often gets the final word on matters, because it is the means for peaceful resolution of disputes between people who don’t agree, which inevitably leads to a high-degree of power and influence over other institutions of society as well as over society itself. But that does not make government all powerful, nor does it imply that all other institutions and organizations “report to” government. And when government is going to use its power to alter an institution that not only did it not create but also is one that has been with us and has been important to society for longer than government has, government should be required to go through its mechanisms that are most broadly connected with the surrounding society, i.e. through the legislative process, and not through the opinions of a few judges.

Justin Katz
11 years ago

Joe writes: I just don’t see why the government has an interest in promoting that link, for its own sake. What do you mean, “for its own sake”? Can’t it be for the people’s sake? And (furthermore) isn’t the determination of these sorts of fundamental questions best left up to the people in a system of self-governance, rather than the dictation of you and a handful of judges? I know, I know. You think the Constitution guarantees that benefits must be doled out to all who meet the criteria. What you continue to ignore, though, is that changing the traditional definition of marriage — which you acknowledge as opposite-sex — is a prerequisite to there being invidious discrimination (as Andrew beat me to pointing out). A person wishing to form a committed, intimate relationship with a person of the same sex is not similarly situated to a person wishing to marry somebody of the opposite sex unless you first redefine marriage in such a way as to eliminate the requirement of opposite sex — which is to say, to eliminate the inherent linkage between marriage and the categorical ability of men and women to create children together. I might as well claim eligibility to welfare on the grounds that, after you remove my monthly debt payments, my income is below the poverty level. My coworkers in construction might as well claim rights to veteran’s benefits on the grounds that their work is also dangerous and beneficial to society. It seems to me what the government has an interest in promoting is stable relationships that its citizens choose to enter into and raising kids in loving homes. OK. Fine. But why does government have an interest in promoting stable sexual relationships? Grandma and Mom can create a loving home, and I’m… Read more »

Ron Barron
Ron Barron
11 years ago

So, who decided that marriage had a legal definition in the first place? If it has a definition, it comes from tradition and is an expression of culture. If that’s the case, then living in a pluralist society should mean that different groups are allowed to express different cultural definitions on their own terms. Gay marriage does nothing to alter the cultural definition which conservatives are fighting so hard to “defend”. You are still free to marry who you will. If anything is changing it is the legal definition which is clearly intended to lend state preference to one cultural definition over another. That’s majoritarian tyranny by any metric.

Justin Katz
11 years ago

Ron, Aversion to majoritarian tyranny does not justify submission to minoritarian tyranny. The answer to your question is that human society defined marriage outside of government, and that government, acknowledging its importance, has sought to encourage it in various ways. In the process, it has built legal structures and developed social policies premised on the definition in ways too broad and deep to be incorporated into “whereas” clauses or even in legislative debate or judicial proceedings. Similarly, not every mathematical implication and condition of the word “one” is a matter of legal record accompanying every law and policy, but that doesn’t mean that we must behave as if “one” and “two” are the same because a dissenting cultural group garners attention. But you approach the appropriate resolution of the debate in your insistence that subcultures can treat the institution as they like. The way for homosexuals to change the definition of marriage is through the culture. It’s a long, slow process, but that’s what prevents our society from falling apart. The process is particularly important inasmuch as the pure notion of pluralistic society that your assertion requires is not the society in which we actually live. Note, for example, the end of Massachusetts Catholic Charities’ adoption services because the state would not certify the group if it refused to acknowledge the state’s de-gendered definition of marriage. Clearly, the traditionalists were not able to express marriage in their own terms. As with secularist progressive visions for the freedom of religion, the freedom turns out to be a very narrow ability to believe whatever we want… as long as we don’t presume to act in accordance with those beliefs. Cultural conservatives will be able to marry as we like, but in public matters — from our charities to the lessons in public… Read more »

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