Well, I know I'm probably a minority in saying this, but I'm disappointed - not because I don't think everyone should have access to the government rights attached to marriage, but because it seems our country doesn't actually want to fix problems at the root.
What is the root problem? People on both sides of the debate agree (if given the option) that the government probably never should have messed with marriage, at least not as the cultural/religious thing that it is.
In a nation where we care so much about the separation of church (broadly defined to include ideologies that may not be formal religions) and state, I don't understand why we're seeking to only expand that connection.
What should happen is the government should stop defining marriage of any form (leave that to religion or personal tradition), and simply define all these rights under civil union (or a similar phrase with no significant religious/cultural attachment).
But, it's not fair to ask gay people to wait around until marriage is removed from our entire legal system (taxes, immigration, property rights, family law, custody...). So in the mean time marriage equality is a much easier fix.
Maybe someday there will be a ruling based on the Equal Protections Clause that bans treating married people differently than unmarried people under the law. Wouldn't that be interesting?
I can't upvote this hard enough. OP is right in my mind, but....
I'm straight (and divorced), and we got married for many of the same reasons that LGBT folks want to--it makes sense. Visitation rights, inheritance, tax treatment, etc.
It's unlikely that marriage would be removed as something of concern to lawmakers--has that kind of thing ever happened anywhere, any time, any way?
I respect OP's opinion, but it's ivory tower and we're talking about real people right now.
possibly unnecessary edit: just want to reiterate that I think OP is _right_, it's just not practical, and I'll sacrifice rightness for a rather-large "quick and dirty win".
France has done so. When you get married there, it has to be performed by a government official (usually someone representing the mayor's office). You can have a big church wedding if you want, but the state doesn't recognize it.
Later, France created a very powerful form of non-marriage civil union (the PACS) and saw it become incredibly popular with straight couples.
What? That's exactly the opposite of what parent is suggesting (if I understood correctly): marriage should be a private or religious matter and not a legal institution. Also, non religious marriage has been going on for a long time in many countries (e.g. China) and I don't think France is a notable pioneer in that area.
since some sort of legal status is required for many
purposes in most countries
The idea here is that you get rid of those "many purposes" and treat a married couple like any other people who have decided to spend their lives together.
that is what "married" means. Two people who have entered into a legal contract to spend their lives together and bear certain responsibilities with respect to each other and those in their custody. The religious interpretation of what it means is irrelevant for legal purposes in the US
I see it more as either end (no government involvement, marriage is religious only or no church involvement, marriage is civil only) would satisfy the OP. The middle-ground is the actual opposite to both ends, in that marriage isn't secular or optional.
I have no need to redefine people's religion if they willingly separate it from the state.
This is largely true in the US. I can't speak for how it works in all states, but in most you need an official to marry the couple. The official can be either a religious minister or a government official (such as a Judge or Clerk). From the States point of view, it is not really a religious issue.
There are actually "religious" organizations who for a small fee will give you a certificate to act as a minister to perform a weddings, no dogma required. I believe these are accepted in all states.
In my state of Colorado, a couple can marry themselves without the need for any official from the state or religion. Couples marrying themselves are free to ask a friend to stand in as an informal "official" during a ceremony, but legally, they sign the marriage certificate as having married themselves.
In the US the question of gay marriage is really about the government recognizing the it and giving gays and lesbians the legal rights and responsibilities found in marriage. Most church's will continue to be against it and not perform such ceremonies. Although a few, such as my own Unitarian Universalist have been advocating for gay marriage for decades.
That's the difference between France (and many other European countries such as the Netherlands) and the US: here, the official cannot be a religious minister. You first have to get married by an official from your municipality, and only after that is it legal to get a religious marriage (or anything else that carries the name "marriage" but is not the official government-recognized marriage). Because of the separation of church and state, the official marriage cannot be done as part of a religious service, only in a civil ceremony (which can be very minimal).
That isn't very different at all. The religious wedding ceremony is not legally binding in any way. You must file for a marriage license in your local jurisdiction, and have it completed by your officiant, whoever that may be.
Largely, the same goals are served, but the symbolism is a little different. In the US, the moment when the marriage becomes official can be during a religious service; in the Netherlands, it can't.
That sounds like discrimination in the other direction to me. In US you are given a license and you can choose who officiates that license. If you are not religious, you can have a Judge or a government official officiate your wadding. If you are religious, you are free to use a minister of your choice. This way neither side is discriminated against.
From what you are describing, in EU you HAVE to be married by a government official even if you are religious. That's the wrong attitude to take. To each their own, let the people choose.
From bureaucratic perspective the important part is that the state is aware of the "social contract" two people made between each other and there is a witness who witnessed the "execution" of that contract. That's all. Who that witness is, as long as they are trustworthy, shouldn't matter.
You talk about the EU as if it is one legal jurisdiction. We in fact have 28. In Sweden you can get married either by a government official or by a vicar in the church (but only apparently a vicar of the Church of Sweden).
You right, I should have said Netherlands, because I was replying to that specific example by the parent comment, and after doing some research, it looks like EU is all over the place on this topic.
I've been married in the Netherlands and it's no problem to have the city official be there during your (religious) wedding; you just have to pay them a bit more to show up ;)
In the US, the moment when the marriage becomes official can be during a religious service
Not really. Most folks I know, even the ones who got married in a church, were technically already married when they signed their marriage certificate at city hall.
I won't claim to be a marriage expert, but I don't think things are all that different from the Netherlands.
I wonder what happens if a couple gets a license and then decides not to go through with the ceremony when the time comes. Are they still married? Or do they have to file for a divorce? Are there provisions for an 'annulment' from a legal perspective?
I guess there are actual annulments, but I always thought of those from a religious perspective, not a legal one. I can't fathom that the requirements are the same as presumably the religious one stipulates no intercourss.
My impression is that OP wants the current rights from marriage to be part of civil unions instead, not for said rights to be eradicated outright. The former sounds like a more reasonable position and would address your (and the parent commenter's) concerns.
It is a reasonable position, but a realistic one only if you believe that the opposition to same-sex marriage is the use of the word "marriage" and not a fear-driven hatred of people with a different use for their plumbing. As it happens, I do not; I am entirely certain that "civil unions" being applied to gay people would call down the exact same rhetoric from the exact same people. (I am further certain that the whole "defense of marriage" is only a proxy for not being able to beat the shit out of gay people for funsies anymore. Progress, I suppose.)
Except that reality doesn't agree entirely with that model; a large number of opponents to same-sex marriage have expressed acceptance of same-sex civil unions.
However, your point still stands true in the case of custody rights, since same-sex-marriage opponents tend to claim (rather dubiously) that children raised in such a family tend to experience psychological trauma.
I'm really more-or-less neutral on the matter; it doesn't matter what it's called so long as the rights are equal for everyone. "Marriage" is a good-enough term for that.
Many of the statewide same sex marriage bans also prohibited civil unions. Virginia went so far to prohibit contracts that between same sex partners that established defacto civil unions.
> a large number of opponents to same-sex marriage have expressed acceptance of same-sex civil unions
Some folks express that, yeah. I do not believe it is an honest position in the general case and have suspected since the jump that that's a move of the goalposts designed to appear more reasonable than they are, ready to be dragged back further as they are approached.
What I think happened is that gay rights activists realized they would get better standing to fight for equal rights if they called it marriage. That was a successful tactic and I'm not quibbling with it. But I know there are people who would have been pacified as long as it wasn't the word marriage because I have talked to some of those people. If those people also are afraid of gay people in their hearts, that's terrible - but it actually doesn't equate to opposition to civil unions that are only a boring legal matter as opposed to the sexy, apocalyptic "attack on marriage."
I can't agree. The word "marriage" in particular makes people irrationally excited and start thinking about their church's definition of marriage. So politically, it is a line in the sand. "Defense of civil unions act" doesn't have the same ring and wouldn't get Republicans out to the polls the same way. If, in an alternate history, this could have been made a matter of the government meddling in the issue of marriage as big brother, then we would have seen more input from at least the libertarian side of the right wing if not also the mainstream. As it is, I'm glad about the outcome but now we have another irreconcilable front in the culture war alongside abortion.
How would removing rights granted by marriage and putting them under a civil union, which is what I took the parent to propose, supposed to not trigger irrational excitement of people who support marriage in it's current incarnation? You can argue that people shouldn't care if they just have to get a civil union in addition to their marriage, but we've already brought irrationality with regards to how marriage is defined into the argument as a behavior that we agree exists, so we can't ignore it now.
>"Defense of civil unions act" doesn't have the same ring and wouldn't get Republicans out to the polls the same way.
Because its not coded language designed to appeal to homophobes, unlike actual Republican rhetoric. If it wasn't an "attack on marriage" it would be something else.
Yes, the civil and legal ramifications are important:
- my inheritance: my spouse can get my SS income when I die, my wife inherits my goods by default, etc. Now gays get the same treatment.
- taxes: are different for married and non-married folks. Now gays get the same treatment.
IOW "follow the money".
This ruling will change how much money the government pays to its citizens and how money is passed among its citizens (after marriage and death in particular). But nobody ever discussed the ramifications of this and the entire discussion was based around a bunch of bombast.
Actually now ANY TWO people can get the same treatment. Two straight males can get married. If I was single and I had a friend with good benefits, I'd make a case to get married... The savings on insurance and taxes we'd share. Now if millions did this, the cost of those benefits will go up drastically.
How is this any different to a male and female friend better married just for tax benefit? Its not widespread now, why would it become widespread when people of the same sex can do it?
Feel free. And realise the massive financial risks you are taking by being legally tied to someone. Especially someone who does not have the same kind of emotional bond to you as a genuine spouse hopefully would.
A prenup is insufficient unless you're also in a legal environment where a spouse can not financially make both of you jointly and severally liable for a debt, for example.
It doesn't help you if the other party doesn't get any of your stuff in a divorce if you're still saddled with debts they took on while you were married.
There may be places where this is possible, but I doubt it'd be worth it once you factor in the cost of sufficiently safeguarding yourself, unless there are massive amounts of money involved.
Nothing. Except I tended to hang out with and lived mostly other straight men. I'd probably have been able to convince one to do prenup and marry for strictly platonic income and tax planning reasons. See comment above or below related to prenups and no fault divorces.
I think our wires got crossed here. I'm arguing against the idea that we should change the name to civil unions and make it legal, as opposed to just legalizing equal "marriage".
I certainly don't care what it's called, as long as there's something that confers those rights.
That said, I do object to the oft-stated remark that marriage has historically been a civil rather than religious institution, primarily because historically that's been a distinction without a difference. Such remarks tend to take a separation of church and state for granted when, in reality, both those things were very frequently conflated until maybe the last few centuries, and even then it was a very gradual shift in practice.
Hell, church and state are still one and the same in much of the modern world (see also: significant portions of the Middle East, the United Kingdom, various others). Implying that this was any less prevalent historically is, well, silly.
Can you support that claim? I always thought it was rooted in religion, and the practice dates back to a time when every person and thing was religious since we really knew no better, as far as I'm aware.
But that's a silly and dishonest argument because there are plenty of areligious hetero marriages. If separation of church and state is anything more than lip service, statutory marriage isn't an explicitly religious institution. Not to mention that religions exist that have no problem with gay marriage.
I'm still waiting for an actual reason to rename the operation be forced to edit a few thousand statutes and negotiate or renegotiate a bunch of international agreements.
If I changed my name to 'fuckwad' people would treat me differently. Half of people's biases and thought sequencing is a result of simple word choice, not analysis of meaning.
Addendum: If this weren't the case, nobody would bother with propaganda or marketing.
This is the critical thing for me and what makes that particular dissent so baffling ("This issue has been stolen from the democratic process!"). It is a crime and tragedy every day we go on where gay people can't marry. People are (were) suffering emotionally, materially and in principle - millions of people - because of that law. It's already been excruciatingly, unbearably, unjustly slow to get this far - and people should wait around for a better fix? No.
>This issue has been stolen from the democratic process!
This reminds me of the Tea Party slogan "No Taxation Without Representation!", the chanters seeming to have forgotten that they have representation. An elected official who represents them. Just because the chanter wasn't in the voting bloc that won doesn't mean that democratic process wasn't followed...
Indeed. An excellent example of the perfect being the enemy of the good.
More so, by expanding the institution of marriage to gays (as it was not long ago expanded to interracial couples) it will ultimately help build public support for redefining marriage.
Wouldn't you agree something similar applies to workplace discrimination? For example, I would never be willing to work with someone who discriminates against gays. However it is only due to my own economic circumstances that I'm able to act based on that preference. One could as well conclude that the root of the problem is people having to tolerate unfavorable conditions just to get by, and that addressing the issue of discrimination is just a temporary solution. I live in Panama not in the U.S.
I struggle to understand people's language quite often. For example, you say that you won't work with people who discriminate against gay people. Why caveat that? Is it that you're happy to work with people who discriminate against other criteria other than sexual orientation?
I usually find this language reflects how a person thinks, eg. I am gay; therefore, I only care about discrimination against gays.
There is no benefit in your caveat (as far as I can see). It does, however, open up a myriad of other issues. Eg. To discriminate is to choose. Also, one of my favourite chestnuts: positive discrimination is negative discrimination against others. Eg. "I must hire someone who is ____" is the same as "I won't hire someone who isn't _____ regardless of experience, certification". This logic has always baffled me.
Precisely! And that "concern troll" argument is also commonly used by bigoted opponents of gay marriage who don't want to admit their real motivation. As soon as the concern trolls can come up with a plan to convince all the right wing religious bigots to abandon the institution of marriage, we can start taking them seriously.
Not just from the legal system, but what about software systems out there?
How many Human-to-human systems out there have invariants coded in for gender/sex settings? It might make for some interesting scenes of discriminatory software in court for businesses that utilize them.
I'd say in the laws the government should simply recognize all unions as civil unions, leave marriage to your "religion" but I still agree that discrimination based on relationship status is wrong. Every individual should be able to specify who can visit them in a hospital, who is entitled to be the beneficiary of any social security benefits etc. Social Security and health care is dooming this nation and there's a clear timeline for it's demise unless the way they are handled changes, so maybe inheriting government benefits should go away and everyone should only be entitled to what was deducted from their own checks or willed to them by others. The US is looking at austerity in 10 years max, 5 years minimum and the people are too busy sticking up for their favorite party like sports fans on a bus arguing about astroturf and logos while the bus goes over a cliff.
Marriage has always been a government institution. Religion co-opted it for themselves at a later time. This "leave marriage to the churches where they belong" cry is disingenuous. Marriage is about a contract between individuals. It provides government granted privileges in regards to taxes, healthcare, inheritance, court testimony and child custody. It has nothing to do with religion. If you want to have a religious ceremony to celebrate and "sanctify" your government granted marriage, so be it. But don't pretend this is a religious tradition meddled with by government. It is a government institution that has been meddled with by religion since before religion and government were separate.
There was almost no difference between government and religion when marriage originated, so it makes little sense to argue who invented it. Was Moses a political or religious leader? Were pharaohs political rulers or gods? Etc. What is very clear is that, in our society, civil and religious marriage are two different things that share a common name, and that one should have no influence over the other.
It doesn't matter who invented it. It matters what it is. And marriage is fundamentally a government institution. It concerns laws and legally granted privileges. If there's a sacred component, let the churches keep that part, but that's not what the SCOTUS ruled on, and it's not what millions across the country have been demanding for decades.
Not legally you won't. Your "marriage" will be equivalent to "monogamous relationship", that's about it. No visitation rights. No tax breaks. No inheritance rights. No pension rights.
Currently marriage involves third parties treating couples differently because they're married. That requires a standardized status and seems tricky to do with contract.
For example: different taxation, different financial aid, etc.
You could get rid of all these, but that is a big change.
That might be very clear to you and I but I'm hearing a lot today about religious liberty being trampled. So I suspect it isn't as clear to a lot of people.
> Marriage has always been a government institution. Religion co-opted it for themselves at a later time.
I don't think that's the full story. I suspect that religious marriage existed long before nation states and most of the current legal distinctions associated with marriage.
>I don't think that's the full story. I suspect that religious marriage existed long before nation states and most of the current legal distinctions associated with marriage.
I suspect that marriage - a man/wife pairing (or 1-to-N grouping) recognized by the tribe/village with respect to all those legal distinctions related to property, children, etc... - existed long before the religion.
Are we supposing religious monkeys now? It wouldn't surprise me if earlier hominids were religious as well, but to call any other possibility "quite ridiculous" is really overstepping.
You don't think that there were humans that existed before any form of codified spirituality? I'd be willing to believe that explicit ritual bonding (marriage) didn't predate religion, but find it hard to believe that the first words we uttered went along with some sort of priestly social class or referenceable rules for living.
> I suspect that religious marriage existed long before nation states
Do you have any actual evidence? Because here in reality-land, the evidence shows that the English legal tradition considered marriage a civil institution long before the churches tried to claim it.
Englang went from pre-history into history in 42 A.D. when the Romans came there. It didn't even have written history before that [check Wikipedia if you don't believe this].
Hardly the place to look for the origin of ancient traditions...
Well, nation states have only existed for 500 years or so, and marriage is mentioned in the Bible and plenty of Ancient Greek writings. I'm not sure if that counts as evidence here in reality-land.
With so narrow a definition of "nation state", I am left wondering what relevance "religious marriage existed long before nation states" has to the broader discussion.
States have existed far longer. "Nation state" refers specifically to a state which coincides with a cultural or ethnic group. If you had to choose a starting point for the idea of the nation state, the Treaty of Westphalia is one of the more reasonable.
Again, it depends on your definition of "state." If you're using the term interchangeably with the much broader term "government," which can include even the smallest and most primitive family or tribe power structures, then you can probably consider the state to be older than marriage (I actually think there's still room for debate even then, depending also on the definition of "marriage").
I'm fully aware of that, but it's irrelevant to the claim that the poster suspects "that religious marriage existed long before nation states" being disputed with "the evidence shows that the English legal tradition considered marriage a civil institution long before the churches tried to claim it".
The simple fact is marriage easily predates all the English (pre or not) legal traditions. English (pre or not) traditions at best drew on the earlier concepts and practice of marriage.
Crack a world history book open sometime. Or just use google.
Humanity has definitely been around long before the current crop of judeo christian religions that our country's concept of religion is based upon. "Religion" is not a single entity, and not all religion defines marriage the same way conservative Christian sects do.
Marriage as a practical matter exists in all societies everywhere, in the absense of any institutions of organized religion or the political state. Read any ethnography of any stone-age people from the past several hundred years and you'll find social pair-bonding without any religious or state sanction. There is frequently family sanction, but that is clearly not what you are talking about.
And historically in the West, marriage as a sacrement didn't get off the ground until the late Middle Ages: the Council of Verona in 1184 if memory serves. And even long after that it was still mostly a practical matter for most people.
"Marriage is about a contract between individuals"
Interestingly, I view it as the exact opposite. My wife and I knew of our bond together. I got married only because it was a public recognition of that bond. It was to share that bond with friends and family. It did not change our relationship or commitment at all.
As to the legal situation many have mentioned, that could have easily been covered by a will for us. It may vary by country, but a will and defacto status offer the same protection in some parts of the world. I sought legal advice when I considered my options of marriage because marriage means little to me. I think its significance to a couple's commitment is highly over rated.
> What should happen is the government should stop defining marriage of any form (leave that to religion or personal tradition), and simply define all these rights under civil union (or a similar phrase with no significant religious/cultural attachment).
Sure. And that was not in the cards. What you want is not on the table and likely never will be. But expanding the rights of people because of basic fairness is a step in the process of making the lives of our fellow Americans better.
Asking gay people to wait for a unicorn is bullshit. Please don't be That Guy. Ideological purity is so often the enemy of making the world better.
> Asking gay people to wait for a unicorn is bullshit. Please don't be That Guy. Ideological purity is so often the enemy of making the world better.
But, why not?
I'm a male. And I'm bisexual and polyamorus. I understand, and accept if a family wants to have 3 adults. Or 4 adults. I'm even OK if children are raised in that atmosphere.
Right now, there are rules and restrictions on polygamy (which is a subset of polyamory) mainly created for the Mormons in the 18 and early 1900s.
Doing as the GP said would have these archaic rules also overturned.
Because gays not being able to marry is an injustice, an unfairness, oppression, etc. Priority #1 is to stop doing harm to those people however it can be implemented. We didn't* say "Oh black people should have rights, but let's postpone that until we can come up with the best possible way to write it in legislature"
> We didn't say "Oh black people should have rights, but let's postpone that until we can come up with the best possible way to write it in legislature"
Yes we did. Black people were legally discriminated against for almost 100 years until the Civil Rights Act. And before that, we were slaves until the 14th Amendment. Similarly, women weren't allowed to vote until the 19th Amendment.
I'm all for civil disobedience in the face of injustice. And I'm 100% for gay rights. And I'm ecstatic about the court's decision today. I think it was undeniably right from a moral perspective. But it was probably wrong from a legal perspective, and that's worrisome.
We should have, because what we ended up with is the concept of protected classes, which plays favorites with a specific set of personal attributes and is generally a massive injustice and is now normalized.
> Doing as the GP said would have these archaic rules also overturned.
But at the expense of meaning that some couples wouldn't be able to marry, for, what - the next decade? Fifty years? And it's not as if a broader change to the meaning of marriage is off of the cards as a result of this - let's take the wins as they come.
I've often wondered if polyamorus families could make an end run around the old anti-polygamy laws by creating a corporation. It would give legal protection for shared property and money. Would also provide a mechanism for divorce by allowing the remaining people to buy out the shares of the person leaving. It wouldn't be perfect but it would be a start.
I'm personally not poly in any way, but it's a fun thought experiment about how one could make it work in the current legal climate.
A while back, I was joking to American gay friends that if they wanted to have their rights recognised in post-Citizens United America, they ought to set up an LLC together rather than get married.
... and adopt and raise children, pass their SS to their spouse when they "die" (go bankrupt?), marry human "persons", marry horse, dogs, the subway train et al?
Very true. There's a lot that legal marriage provides which can't be found in a corporation. The idea is that incorporating would provide some benefits and protections that the poly family wouldn't have otherwise.
I honestly wasn't joking at all. It's something I've thought of off-and-on over the years.
I could see how a trust would be better, though, in the US at least, I think a corp / LLC might be more flexible. And here, especially if the corp is formed in a few rules state like Nevada or Delaware, the paperwork isn't too terrible for small organizations.
> I understand, and accept if a family wants to have 3 adults. Or 4 adults. I'm even OK if children are raised in that atmosphere.
Do you think that it serves the interests of the rest of society to offer special benefits and protections to 3-4 person unions? If so, what? Is there a size limit on such unions? And under what conditions do they begin/end? If one person leaves the union, is the entire union abolished? What if two leave together? Can you have a divorce that turns one union into two or more? What happens with property and/or child custody in that case?
Yes: questions like these need to be asked, and at least tentatively answered, before legally sanctioned poly marriage can even be put on the table for discussion. In particular, there needs to be a clear idea of what happens to the children under the various possible scenarios. I don't think just letting people make whatever agreements they want is going to fly, at least not once any children at all are involved. These things could get very very complicated. There needs to be at least a framework, a sense of what structures can work, as borne out by experience.
I have a suspicion that in the end, it will turn out to be best not to make any special legal provision for poly marriages. The law will recognize couples, and those couples will be free, as indeed they are today, to make whatever informal arrangements with other parties they wish. In a few areas -- hospital visitation rights are a good example -- I think it would work to detach the right from legal marriage altogether, and just let people declare who may visit them, etc. But the legal system has to know who is legally responsible for each child, and I don't think it can be more than two people -- even two is often problematic, as we know from long experience.
You make a corporate charter, issue shares and have vesting schedules!
Joking aside, you'll notice a lot of parallels between a business partnership structure and marriages in general. Including the liability parts!
"Personal liability is a major concern if you use a general partnership to structure your business. Like sole proprietors, general partners are personally liable for the partnership's obligations and debts. Each general partner can act on behalf of the partnership, take out loans and make decisions that will affect and be binding on all the partners"
> I understand, and accept if a family wants to have 3 adults. Or 4 adults. I'm even OK if children are raised in that atmosphere.
I'm with you here. But expecting same-sex couples to suffer for poly folks is not copacetic. The cat's out of the bag, and the line will continue to move. And that's a good thing.
> Doing as the GP said would have these archaic rules also overturned.
Doing as the GGP said would have nothing be done, in hopes that something was eventually done. Politics is the art of the possible. Don't pass up victories that are on the table.
Extending the law that provides special rules for pairing, because society deemed pairing useful, to all pairs is fundamentally different than discussing whether we should be arranging groups larger than pairs.
I'm not saying the second question isn't important, I'm just saying that it's a little unfair to make people wait while we already have a law about pairings in place while we have an unrelated conversation.
How's polygamous divorce work? Majority vote? A lot of what constitutes "marriage law" has to do with what happens when marriages fail in one way or another.
Polygamous divorce doesn't necessarily mean that everyone goes their separate ways. Rather, it could be that one person leaves (and generalize it from there). One or more people want out, and so execute some exit clause in the contract. What, if anything, they take away is settled at that time. Just like a partner leaving a three or four partner company.
It's not a majority vote under monogamy, by the way, so why would it be under polygamy.
Because switching to a system where everybody has to get unmarried in order to satisfy the ideological preferences of people who want to get the government out of the marriage business is something that's going to be a really hard sell to all the existing straight married people.
If you get government out of the marriage business, marriage stops being a legal reality. You therefore get rid of the legal status of people who are married. You take away benefits and legal status from straight people who are already married.
No amount of sugar makes "oh, by the way, we don't recognise your marriage anymore" taste any better.
> If you get government out of the marriage business, marriage stops being a legal reality.
Not at all. There are lots of legal realities now that have nothing to do with the current marriage-specific laws, and likewise marriage could exist as a legal reality without the current marriage-specific laws.
Then you have government blessing certain types of unions for specific purposes. At a certain point, the government has to decide whether I get an inheritance tax benefit for my partner's estate and they will have to decide whether to grant that to long-term same-sex couples or restrict it to just opposite-sex partners.
Which is basically the same thing as having a set of marriage laws without the ceremony and the cake. Pointless refactoring for the sake of it.
> Then you have government blessing certain types of unions for specific purposes.
Not for most things. You just make a contract with someone, and the government can (if necessary, through the courts) enforce that contract. That works fine for hospital visitation and medical decision making (the government can step in if a hospital refuses to respect a contract) and wills. For things like tax exceptions, well, that's all the government's doing anyway. How about just give everyone the tax benefit if it's really so complicated to figure out.
Before most popular religions were created, marriage was already old.
For cultural reasons, it's popular to do a RELIGIOUS CEREMONY along the marriage. What's religious there is the ceremony, not the marriage.
You can have religious ceremonies without marriage, and marriages without the religious ceremony. Two independent concepts that, by happenstance, often come together.
Even if it's just a social ceremony, the government should not give it special legal allowance. The government doesn't recognize Quinceañeras or bar mitzvahs.
If you believe that marriage has an important legal function, it's also not fair to preclude polygamists from getting those same legal utilities.
A much better generalized solution is to expand the purview of contract law to allow it to do everything marriage does.
The government does recognize a legal "coming of age" in several cases (at least in the U.S.).
- Driving a car (restricted at 15 years and some months, open at 16)
- Entering the Majority (18)
- Can enter the military (18, or 17 with some restrictions)
- Can have Sex (rules vary by state, but is generally 16-18 with various limits)
- Can drink (21)
etc.
It just so happens that these legal coming-of-age points don't specifically align with any religious coming-of-age. The two are divested from each other due to various pre-existing cultural forces. But it's completely conceivable in some alternate universe that the two are conflated and one enters the majority legally at the same time as going through a "traditional" Sacrament of Confirmation.
At first I thought of it jokingly, but it is actually related - you can add to this list minimum age for politicians: representatives (25), senators (30), and potus (35). It doesn't affect many people, of course, but it is age-based freedoms implemented by the guv.
Marriage need not be a "government thing" in the modern sense, with all the legal distinctions we currently have. Marriage is inherently a legal thing, in the sense that it's a contract between people.
Marriage confers very special rights, such as permanent residency or social security inheritance, that you cannot obtain through private contracts. Therefore the government has to be involved.
this is the crux of the issue in that government policy is, in large part, based upon a private contract. neither government nor judeo-christian sects (which, if we're honest, is whom we have in view when we speak of "religion") seem to be able to grasp the full implications of this.
It depends on your definitions. If you consider all legal systems to be "states," including primitive tribal ones, decentralized ones, etc., then yes, "state is a prerequisite for law" is a tautology. But today, "state" usually refers to a relatively large and relatively centralized organization governing a well-specified region that is recognized by other such states. Using that definition, a state is very clearly not a prerequisite for law.
The context that allows a system of laws to operate doesn't just spring forth spontaneously from a vacuum. Rather, it exists because we have a government based on the rule of law.
marriage certainly predates Christianity. Therefore marriage shouldn't be associated with Christianity or Islam or whatever. Marriage is a social construct before being a religious one.
you're conflating "Christianity" with "religion" though. it was addressed above but it bears repeating, social and religious constructs were inextricable in antiquity. the concept of separating them is fairly modern.
Your sentiment, while admirable, is a libertarian pipe dream. Even the most liberal countries in the world still get involved in marriage. While I am by no means a social conservative, I do agree with conservatives that the family is the foundational institution of civil society (and a lot of anthropological research supports this argument). Governments will be more or less involved with it to some degree, both to foster it economically and encourage it socially. To see the American social contract as having been set up to never have to encounter or acknowledge any spiritual/religious institutions is bad history, we have simply always held that the government cannot be in the practice of encouraging one over the other.
Taking the long view, conservatives (and others) should be rejoicing. This ruling is a broad expansion of the definition of what the government will recognize as a family, a definition that is of consequence to numerous helpful social programs, and an affirmation of what family is in civil society. The ruling will have enormous social benefits for our society.
There is no reason why governments should be involved in it, except that people can't keep their grubby hands off of it.
Doesn't make a lot of sense for us to subsidize people to do something which they are supposedly doing because they want to. The only reason there are all these fancy tax breaks is because politicians get ahead saying they are "for families".
It isn't the government's job to "acknowledge" every religious custom you have at church by also writing it into law or something. The government has its own jobs.
> Doesn't make a lot of sense for us to subsidize people to do something which they are supposedly doing because they want to.
Sure it does. Long-term couples tend to take care of each other's health and wellbeing. Marriage is a way of recognising that long-term care relationship.
In countries with any kind of government funded or subsidised health system (or even a private health system based on insurance), those benefits of being married are costs that would otherwise be borne by the rest of society.
When I'm old, having a partner to look after me means I'm less likely to need to go to hospital or need doctor's visits. I'm less likely to be unhappy, so more likely to be economically productive. If I need to take time off work, or retrain, or whatever, two partners are able to rely on each other for both financial and moral support.
Social conservatives are right in the sense that marriage is for plenty of people a form of social "glue" that holds people together. The state has good reason to want people to be held together like that - because it makes citizens happier, more productive, less likely to need public handouts, more likely to be able to raise children successfully or produce taxable wealth - and so on and so on.
It'd be difficult to measure the economic benefit of marriage to the state, but the actual economic benefit of being married is pretty minimal (estate/inheritance taxes seem like the biggest benefit) compared to the benefit to society and to the state.
Most if not all of those things that marriage does are also applicable to same-sex couples, incidentally.
> Long-term couples tend to take care of each other's health and wellbeing ... because it makes citizens happier, more productive, less likely to need public handouts ...
Citation needed. Plus, the benefits have to outweigh the costs: tax breaks, unhappy folks (would that cause health issues?) stuck in the bad marriages etc.
I am guessing availability for comparatively stable social unit for raising kids might be a large enough positive, but the benefits should then be for families who raise kids, potentially scaled with the number of kids (don't know if that's already the case). Even the other benefits you mentioned, have nothing to do with marriage - civil unions (or even group of not-romantically-involved-with-each-other friends) can make citizens happier, productive, less likely to need handouts, raise children well (if single parents can, why not multiple parents?) and produce taxable wealth.
What's shocking to me is that we need permission from the state to marry, whether gay or straight. Why do we need the blessing of the government to marry anyway? We can have kids without permission from the state (so long as you aren't in China), why do we need to ask for permission and "apply for marriage"? In theory, applying for marriage implies the government could deny a marriage, gay or straight. Why do we implicitly give this power to the government?
Tax, immigration/emigration, and will/inheritance reasons. For one thing, the government gives you a tax break if you marry; this was particularly useful because, in the old days, women didn't work so it made sense to not tax the man (who did work) because he was effectively making money for two (and possibly more if they had children). Similarly, getting married changes your defaults if you die intestate (that is, you didn't draw up a will giving all your money to some slap-up blond or something), then your spouse (as oppose to your next-in-line) gets your $$. As for the immigration reason, if you're an US citizen but your wife (or hubby) is another nationality, you can get him or her over here and move onto getting him/her a resident alien card much more easily than through other methods of immigration (presumably this is so that families can be together, which is nice).
If you don't care about any of that and love another person, place, thing, or idea, you can just announce you're married to him/her/it without recognition from the government and just sort of be together.
Tax, inheritance, and immigration laws don't require you to apply for a permit though to have your kids recognized so long as there is a registered birth certificate. My problem is the "application for marriage" process. A marriage should be recognized in the same manner that we issue a birth certificate; something that is issued as a matter of fact, not as a result of application awaiting approval or denial. Why is it not "registration of a marriage" as opposed to "application for marriage"? I think the semantics are important, since "application" implies we are ceding power to the government.
Isn't your body your body as opposed to requesting the government permission to marry?
I understand that it's required for recognition, but isn't it time we at least imply marriage is just a matter of recording instead of a formal permitting process?
> Why is it not "registration of a marriage" as opposed to "application for marriage"?
Because you cannot be married to two different people at the same time. Marriage is not an event that happens, it's a legal contract that cannot be in conflict with an existing legal contract. A new marriage does not immediately nullify the existing contract, so an application must be processed to verify this.
There are also other things that need to be verified like age.
If we are to use the biblical sense of marriage, the Old Testament has a few incidents where a man was married to multiple wives[1]. Then if we are to be traditional, can a marriage not be among multiple people?
Since we have denied same-sex marriage on religious or moral grounds, are we saying we should deny the right for a man to marry multiple men or women or a woman to marry multiple men or women because of our beliefs? Isn't that the same reason that we're denying same-sex marriage(s)?
Age verification is OK, since minors aren't recognized to be capable of forming contracts.
The argument for denying plural marriage is that, in the US, polygamy has been primarily a tool for subjugating women. Legally recognizing these unions would be granting legal cover to people like Warren Jeffs.
If this view is outdated, and our laws against polygamy are causing people real pain, then by all means let them make their case; perhaps times have changed. But we do not make laws in the abstract, and polygamy in the USA is intimately connected to subjugation, abuse, FLDS, and other ugliness.
> A marriage should be recognized in the same manner that we issue a birth certificate
In the case of a birth there is a clear indisputable fact: a child is born, therefore a new human being that must be taken care of and have rights as a citizen is added to the world.
That's a pretty clear event to which a birth certificate can be attached. Is there such an equivalent for marriage?
If two people agree to marry, isn't that indisputable fact? What else do we need to require to prove a marriage? A "Registration of Marriage" would be sufficient, not an "Application for Marriage License." Marriage is a right, not a privilege. Or do we need to let the government decide who can marry still and continue with the permitting process?
Edit: I would like to know why you might disagree if you are down voting me. yellowapple and I have similar sentiments, I think.
I agree with you that marriage is a right, but there are various reasons why a marriage may be invalid. Perhaps one or the other is underage, or it is incestuous, or bigamous, or immigration fraud. You both must prove eligibility in order to acquire the special legal rights associated with marriage, and rightly so. But of course there is no eligibility requirement for being born!
> If two people agree to marry, isn't that indisputable fact?
Why just two? Why people?
And what exactly is the reason for the State to recognise that two folks like to bump uglies? At lease in the case of traditional marriage, there's the creation of children to contend with.
> At lease in the case of traditional marriage, there's the creation of children to contend with.
Huh? Sterile people have always been permitted to marry. Always. Everywhere. Under all circumstances. Ever. Sometimes inability to bear children has been grounds for divorce or--in the case of royalty--annulment, but there has neveranywhere been a test for non-sterility prior to marriage. So what does "the creation of children" have to do with "traditional marriage", given "traditional marriage" could and did trivially take place between sterile individuals.
And whose tradition? One man, one woman, the man's concubines, the odd houseslave, and perhaps a sheep or two? Is that the traditional marriage you're talking about? It's by far the most common kind over most of the world before industrial capitalism.
"Why just two people?" is of course trivially easily answered: humans are a socially pair-bonded species. This seems to be basic to our biology, and is the case in every society ever observed. While bonds between more individuals are possible, they are rare and complicated (the modern poly community is small, for example, and most frequently consists of multi-pair-bonded networks).
> Sometimes inability to bear children has been grounds for divorce or--in the case of royalty--annulment
Not just royalty. An annulment means that there was never a marriage…because a marriage which cannot produce children wasn't regarded as a marriage (or as less of one), which suffices to demonstrate a strong connexion between childbearing and marriage.
> "Why just two people?" is of course trivially easily answered: humans are a socially pair-bonded species.
We are also, you may have noticed, two-sexed. This is even more basic to our biology.
> Why is it not "registration of a marriage" as opposed to "application for marriage"? I think the semantics are important, since "application" implies we are ceding power to the government.
Because you're applying for an official recognition of your marriage for which the government grants various benefits, and the government can in fact refuse it (for siblings for instance)
For the sake of argument, if you want to marry your sibling, and your sibling consents, are we to judge that? Aren't we holding a double standard if our religious or moral standards are opposed to that? Or are you saying the government should still deny those marriages? A segment of society wants to deny same-sex marriage because their moral and religious beliefs are against it.
Yes, many religions are against sibling marriages, but many religions are also against same-sex marriage.
> For the sake of argument, if you want to marry your sibling, and your sibling consents, are we to judge that? Aren't we holding a double standard if our religious or moral standards are opposed to that?
Most of the US puts a value judgement on incestual relationships and I can't say I agree with them, but I do believe there is an argument to be made against incestual marriage: because of the genetic risks to offsprings and the historical tendency to abuse, it is not in the state's interest to promote or encourage incestual relationships through marriage, the social advantages don't compensate for the issues.
> Or are you saying the government should still deny those marriages?
For the reasons above, yes I would say that. But I'm open to the idea that it's only a rationalisation of separately-held beliefs.
I think it's such a rare incident that the state not be concerned about sibling marriages, or whoever wants to get married at all, so long as they are capable of forming a marriage contract (of age, human/entity/Delaware C corporation, just kidding sorta, sound mind, without duress). But the true keyword is whether or not it's in the "state's interest"--and that reminds me of China.
Interestingly, Americans love pure-bred dogs despite the genetic problems these pets have.
> But the true keyword is whether or not it's in the "state's interest"--and that reminds me of China.
Why so? That's pretty much what the state does, it provides advantages for situations it wants to see happen more (tax breaks for instance, dispensations or fast tracks, direct monetary grants) and disadvantages for those it doesn't (fines and privation of liberty, mostly). Would you find replacing "the state" by "society" more palatable?
Then by what you wrote, gay marriage shouldn't be palatable to the state or society, since same-sex marriages usually do not result in natural children with today's technology. So we shouldn't provide any advantages to gay marriages by your argument.
What about "traditional" opposite-sex marriages where children are not produced within the optimal reproductive age window? Should we take away their "advantages"?
> Then by what you wrote, gay marriage shouldn't be palatable to the state or society, since same-sex marriages usually do not result in natural children with today's technology.
Why do you believe creating children is the only social value of marriage? If it figures there at all, it's very low on the totem pole, after all society could simply subsidise rape if that were the point.
> Why so? That's pretty much what the state does, it provides advantages for situations it wants to see happen more (tax breaks for instance, dispensations or fast tracks, direct monetary grants) and disadvantages for those it doesn't (fines and privation of liberty, mostly). Would you find replacing "the state" by "society" more palatable?
The problem isn't encouraging natural children, it's discouraging the birth of crippled children that has a high likelihood of occurring between closely-related family members producing children together.
Said crippled children are often a drain on society. It's not the children's fault of course, but it's still the case.
All of these things are failures only of bureaucracy to keep up. I should be able to notify the government of who my default estate recipient should be. Maybe it's my best friend or some stranger. No marriage required. Tax treatments for married couples need to disappear and flatten out in general. Insurance should be an individual matter or if it's going to be provided by the government (read: all of us are forced to pay for each other), healthcare issues disappear. The only thing basically left is an adoption issue which is more or less an edge case in all this.
Right. So we need permission from the government to marry with a "marriage license"? Why not just record the marriage? License implies a privilege not a right. I'm OK with "Certificate of Marriage." My issue lies with the "Application for Marriage" that implies marriage awaits an approval or denial decision from government. What's next? Do we need to take a marriage test, like we do with driving?
Why do we let the government deny our marriages in the first place? The law should be changed so that we record and acknowledge marriages, not have a bureau officer approve or deny it.
It's kinda a permission thing but not really. When I got married it was just like registering a birth. The city clerk took our information down (name, address, etc.) and had us sign the license under oath that it was accurate. Then the civil officiant just checked our IDs and signed off on the license that we agreed to be married and submitted it the the clerk. We then went back to the clerk to get a copy. The city clerk wouldn't have gave us our license if we showed up without ID or if we were like 12 or something but there really wasn't an "approval" process.
My problem is that the application for marriage created the marriage inequality problem in the first place. We should change the institution to recording instead of application. Just because you were issued one doesn't mean that it was automatic until today.
When you buy real estate, you simply record it. You don't need governmental approval to buy property as far as I know. You will, though, have to pay property tax.
It wasn't an application though. There was nothing that said "approve" or "deny" just that we were truthful. Its reasonable for the clerk to make sure that someone else wasn't trying to impersonate me to get married or we weren't children.
It wasn't the fact it was an "application" that was the problem - you could just say "previously some states refused to register same sex marriages" instead of "previously some states refused to give marriage licenses to same sex couples" and it means the same thing.
The Lovings (of Loving v Virgina) were arrested for getting married in DC.
Refusing to register or to give a license is the same as denying an application.
I can apply for a liquor license and the state ABC can refuse to give me a liquor license or refuse to register a liquor license and it means the same thing.
Have you gotten married in the US? I think there's substantially less red tape in practice than you're imagining. People get married on the spot all the time.
Yes, I have gotten married in the US. I'm not sure how that is relevant. My problem is the wording--"application" as opposed to "registration." Even if it's as easy as applying for a passport, there is still room for denial.
> Tax, immigration/emigration, and will/inheritance reasons.
Inheritance should be simple enough with normal contracts, regardless of marriage (same goes for hospital visitation and medical decision-making, which you didn't mention). Immigration is already completely arbitrary, at the whim of the government. The government could change the immigration effects of marriage just as easily as changing who can get married. That brings us to taxes. Well, that's already an extremely obvious violation of the equal protection clause. Why should married people's taxes be any different than single people's taxes?
> Inheritance should be simple enough with normal contracts, regardless of marriage (same goes for hospital visitation and medical decision-making, which you didn't mention).
Should be, but isn't. Gay couples have been having expensive lawyers write these contracts for twenty years or so and when push comes to shove, they often don't mean shit. That's why we have been pushing for marriage rights.
The other issue is divorce. I know someone who is going through the end of a messy breakup with his long-term boyfriend. They met before marriage or civil partnership were a thing and the process of untangling shared assets, property, mortgages and so on is really complicated.
> Should be, but isn't. Gay couples have been having expensive lawyers write these contracts for twenty years or so and when push comes to shove, they often don't mean shit. That's why we have been pushing for marriage rights.
Yes. It's a shortcut, and I completely understand why people want to take it.
Even though getting married is relatively easy compared to being divorced, we essentially sue the other party and let a supposedly neutral party decide :)
Divorce is pretty easy compared to marriage. Like you said, it's just figuring out who gets what...
Sure, but divorce is something that hasn't been available for same sex couples. Everyone jokes about it "ha ha, next it'll be gay divorce", but actually being able to have someone divide up one's assets in a courtroom is preferable to having no proper legal recourse at all.
>Inheritance should be simple enough with normal contracts, regardless of marriage
No. United State v Windsor (the DOMA case) proved that. Spouses have estate tax exemptions. Windsor sued the IRS for $363,053 in estate taxes that she paid to them because the IRS didn't recognize her and her wife as legally married for tax purposes even thought New York did.
One of the most brilliant ideas I've heard on the subject is a couple of proposed constitutional amendments stating that (a) your body is your personal property, and (b) you have an inalienable right to define who is a member of your family. When framed in that way, even most social conservatives would agree with the underlying principles.
In an odd way, your constitutional amendment (b) would outlaw marriage altogether.
When you have an inalienable right to something, you can't bargain that right away through contract.[1] An inalienable right to define who is family would make it impossible for anyone to enter a "contract" for an exclusive relationship (which alienates your right to marry others you want to have in your family).
You couldn't get married (at least as that term is used now) any more than you can enter a contract to become a slave.
It's the opposite. You can be together whoever you want. What they mean, in this case, is the government recognition of your union. As the government need defined laws to operate...
And why do the government need to recognize the union? To give them some rights that united people need. Like keeping important possessions (like a house), becoming responsible for kids, taking important medical decisions when the other person can't take them, etc.
I understand that laws need definition, but why does a definition need governmental approval? Do we apply for a permit before we want to give birth to a child? Shouldn't it be the same basis as having a kid--that is, if you're going to marry, you are marrying, and no one is to have a say in that except realize that is fact?
Last time I checked, there is no application to have a kid, and kids are defined in law for governmental institutions like negligence of a child, etc.
"In November 2013, following the Third Plenum of the 18th Central Committee of the Chinese Communist Party, China announced the decision to relax the one-child policy. Under the new policy, families can have two children if one parent is an only child.[90] This will mainly apply to urban couples, since there are very few rural only children due to long-standing exceptions to the policy for rural couples.[91]"
Because the unions carry legal consequences, and are therefore the purview of the state.
That having been said, one could imagine that a government that didn't evolve from a religiously-knitted culture would have grounded those unions of family more firmly in contract law, not in a construct that's bound up with gender requirements.
... and when you can find such a government on the entirety of Earth, let me know. ;)
You don't need permission from the government to marry, you can do it yourself in the woods. But if you want all the benefits of a government sanctioned marriage then you have to be married in the eyes of the government.
At this point, it's semantics. In France there is a thing called PACS [1], which is kind of what you refer to.
However to make that equivalently semantic "government version" union would require changing of a large amount of legal text (e.g. taxation legislation). If the "government version" was simply a stand-in for "married" (i.e., reusing the variable) then what difference has been achieved even semantically?
Why should the government stop addressing marriage, which is a cross-cultural structure involving people officially declaring their relationship to a community, sometimes via a legal vehicle? Marriage has been independently constructed by many peoples with many variations. Often times we talk about Christian marriage but not Chinese or Greek marriage.
Why do you frame marriage as principally religious, and something the government should keep out of?
There's one way in which governments have screwed up, including state governments, and that's allowing priests to have legal authority. The wedding industry is a revenue stream. In what other way does religion have relation to marriage? Through the laws of Moses, transferred from God?
The government shouldn't be afraid of words. The government should feel free to not trespass upon religion by creating as many alternative marriages as it wants. The government can create a "high-fecundity during wartime" category of marriage if it wants, and grant extra tax benefits. That's a matter of secular policy.
"I really suggest the A41 form for marriage for your case in particular. My cousin and his girlfriend got married under A41 and they've structured their finances like so and so."
> People on both sides of the debate agree (if given the option) that the government probably never should have messed with marriage, at least not as the cultural/religious thing that it is.
No, I think religion shouldn't have messed with a societal institution. Religion has no more right over it than the state does. The state makes the laws, not religion.
What's the difference between a "civil union" and a secular marriage? It seems like the separation you wish for is already here, effectively. You can get a religious marriage without a government-recognized marriage, or you can get a government-marriage without a religious marriage. If you want, you can do both. Looks to me like the only difference is the name.
> Looks to me like the only difference is the name.
That's literally what it is. People could get married in all 50 states before this ruling. At issue was whether it was officially recognized or not, which has been fixed.
I used to think this was a good approach to take, to just eliminate marriage, but I eventually changed my mind, and here's why: This isn't a matter of state and religion it's a matter of state and CULTURE. You need to take it into consideration with the idea of kinship bonds as a whole.
Take for example the kinship role of fatherhood. This is something the state is rightly committed to taking a stance on, and there's a branch of law (family) to deal with rights, obligations, etc around this kinship bond.
What is a father?
Is it a biological father who has not given up his rights?
Is it a biological father who has no custody rights?
Is it a biological father who has terminated all rights?
IS it a non-biological father who has adopted?
Is it a step-father who has a different name and doesn't have custodial rights but has been called daddy as long as the child can remember? Is it the man who's name is on the birth certificate but whose dna proves it's not his?
Or should we abandon the word father all together and say "civil custodial guardian." instead to try and separate culture from the state?
The separation of culture from state signifies what you hear all the time on fox news: a culture war. There was a culture war around civil rights 50 years ago too, and now nobody thinks twice about it. Eventually the same will be true around gay rights. The idea that you have to step around terms like wife, husband, or marriage - because they get folks riled up would be like stepping around "father" because it might get some folks riled up - it just doesn't happen to as much right now.
One could argue that marriage is an affinity kinship bond, not a descent kinship bond - and thus fundamentally different than parenthood. But that's a biological distinction - not really a civil distinction given all the tremendous amount of legal work that has gone into removing and assigning parental rights for both biological and non biological children.
Marriage isn't a dirty word, it's not a religious word, it's a cultural word that describes an incredibly important affinity kinship bond. A society with plural cultures does not require that we rename everything under sterile newspeak words.
If the governmental/legal aspects of marriage are captured under "civil union", what exactly is "marriage" at that point? A pretty ceremony at a church?
For all practical purposes, marriage IS a secular contract between two people that helps mediate the rights of two people in a wide variety of domains. To me saying gay people can't marry is akin to saying gay people can't form LLCs.
Maybe the religious side should come up with a new name for their ceremonies to avoid some of the confusion? How about "religious union"? (whatever that means)
"the government should stop defining marriage of any form (leave that to religion or personal tradition), and simply define all these rights under civil union"
I don't see this as anything other than arguing a trivial semantic distinction - that we should use the word "union" for government rights granted to couples instead of "marriage"?
Even if you are right about a slightly better word, who cares? What is the effective difference? Religious and government marriages are different. A "marriage" license issued by a government is indistinguishable from a civil union license.
Why grant religions a monopoly on the use of the word.
In all honesty, this is a non-sensical frankenstein remnant of the separate but equal argument for marriage and civil union. It really has no value.
I find that argument ironic. Whatever religious connotations it may or may not have, marriage is a legal construct. It's an arrangement created to deal with a whole host of practical legal problems: inheritance, property rights, etc. Even before modern government, when organized religion administered marriage, it was a function of the legal side of religion.
Marriage is really important to people. If you define the legal part of that as "civil union", people will add new cultural/religious significance to that new definition. Then when polygamy or whatever becomes popular in 2115, the conservatives of that time will cry out about the "sanctity of only two people in civil union, the way it's always been!" And around the circle we go.
What's important today is that our country has expanded our liberties and rights, and a lot of people can now live fuller and more secure lives as a result.
> What should happen is the government should stop defining marriage ...
Sure. But gay marriage and getting government out of marriage altogether are not mutually exclusive. Government can still get out of the business of marriage (and divorce). Please feel free to petition your legislators to pursue that approach. In the meantime, it is only fair that the gays enjoy the same rights that the rest of us do.
Not until the meaning of marriage changes in people's heads too.
For some years my gay friends were "civil unionised" and I always had to do this two step in my head from the words to the meaning I had for life long loving partnership that still has blazing rows and .... You know - Marriage.
So, this is not about religion (really this is from a country where most people under 60 attending church are doing so they can get their kids into the associated school) - it's not about the tax laws, it's about what society sees, expects and hands out to a married couple.
It makes a difference - there is a difference between a couple who are "to all intents and purposes" married and a couple who are married. Because for the 95% straight relationships out there we read something into why that couple has not gotten married. And we are then forced to read the same into a gay couple. That's why marriage matters. Living together is not quite the same. And we know it.
Correct me if I'm misunderstanding things, but your comment suggests that you think marriage started as a religious thing and then later became a legal matter.
This is not the case, at least in western/european culture. In fact, the reverse is true. Marriage was not thought of as a religious institution until pretty late in the game -- certainly not until after 1000. (For example, marriage was not declared a sacrament until the Council of Trent in the 1500s.)
What should happen is the government should stop defining marriage of any form...
It's not a difficult thought experiment to imagine the consequences of this: hospitals refusing to allow visitation from people who are – but they do not accept as – members of your family. Employers refusing to extend health coverage, etc.
Government will have a place here so long as there is dispute over the definition of "immediate family".
There's no possible way this can happen. There's zero political will by two branches of government at the federal level, times 50 at the state level. And the Supreme Court can't do it on its own, because it would have to reverse itself on over a dozen cases in 100+ years specifically stating marriage is a right. And the U.N. Declaration on Human Rights considers marriage a right, Article 16.
I think that's a flawed assertion. Civil marriage has been around forever, and is nearly universal in western society.
Civil Union / domestic partnership is a compromise solution that addresses the realities of modern society. You get the benefits of partnership without involving assets. Marriage has always been a more binding thing, and for good reason.
>People on both sides of the debate agree (if given the option) that the government probably never should have messed with marriage, at least not as the cultural/religious thing that it is.
They don't actually believe this, they only say they do. Take any person who says "Get the government out of marriage!" and ask them if they'd like to pay higher taxes and give up the rights that come with marriage. They'll say, "Well, no..."
Simply put, the libertarian cry you suggest is red herring. It's a way to disguise a disgust for gay marriage by making it sounds like you're for "smaller government." If they really believed what they said, they'd have gotten married in a church and then just never filed the documents with the state. Remember, you can get married in a church and not have it recognized by state. Gays were doing it for years.
I actually was somewhat angry that this didn't happen, the supreme court has the right to alter laws in the way mentioned.
Certainly, specific aspects of the rights/laws protected under marriage would need to change. Case in point, visitation rights for children. However, that could be altered more simply by creating visitation rights "emotionally invested parties" or something (which also would have worked for the gay or straight communities).
The fact is, all legalizing gay marriage does at a national level is reduce states rights. Yes, there is an emotional argument, that gay couples should be recognized, and I agree they should. However, there were many means to that end, and they chose one that appeased the masses, but perhaps was "less correct," in the sense that it is probably wrong for the government to interfere with any sort of bond between people in private.
I agree, but I don't think you can be disappointed from this ruling. Getting the government out of marriage is not an option for the court to take, and it wasn't the issue before them.
If we want government out of marriage, it'd have to be done through Congress and a reformed tax code.
Some states have started looking at dropping the formal recognition of marriage entirely. Increasingly devoid of any meaning, and given enough harassment for limiting who it applies to (consider, say, 12 people and a goat), comes a point where the state decides there is simply no point in recognizing the institution at all.
That's what happened. Your problem is that they are using the word marriage. Prior to this, gays could marry in all 50 states. Just not all 50 states would recognize that marriage. And if the government doesn't recognize your marriage, does it really matter what religion or personal tradition you are following? Apparently, it does.
There is nothing religious about this. It's merely the a similar phrase, one that happens to have religious or cultural attachment.
> but because it seems our country doesn't actually want to fix problems at the root.
That's because it can't be fixed at the root. The root has already happened, and the only people with a problem with the fix now are people who think this has anything to do with religion, which it does not.
"Marriage" is the term under which those rights are defined. Marriage is not a religious construct. Rather, religion and culture are deeply intertwined, but you seem to be accepting the Christian Right's assertion that it alone can define marriage. But I reject that claim. They are free to place their own restrictions on marriages their churches will endorse, but they are not free to define my marriage. Turning the word "marriage" over to "religion" (and ignoring the millions of religious people who fully support same-sex marriage) does more harm than good to reaching our goal of equality.
Religions don't have a monopoly on words. The government, and the people, have a right to name things whatever they want. If the only thing holding your institution up was it's name, then you had other problems to start with.
What should happen is the government should stop defining marriage of any form (leave that to religion or personal tradition), and simply define all these rights under civil union (or a similar phrase with no significant religious/cultural attachment).
The state that I live in passed a constitutional amendment specifically prohibiting civil unions. The only remaining recourse was the supreme court.
I agree with you on the end goal, but perfect is the enemy of the good, and I could not more strongly disagree about waiting until that perfect solution is on the table.
Having every gay couple wait another couple of decades until everybody gets their head out of their ass to have basic rights like visitation of their partner in the hospital, inheritance rights, co-parental rights of children, etc. is an unacceptable moral compromise, and it is heartless to demand that millions of gay Americans make that sacrifice so that the law can look like I want it to.
We still have a long way to go to recognize all of the shapes relationships take (I'm non-monogamous, for example, and don't really expect to see multi-party legal unions in my lifetime), but making one huge group of people suffer while those other things get sorted out is an ethically untenable option, for me. And, honestly, I suspect this is a step in that direction...the religious loons will continue to campaign for changes, because of this. And, we can continue to push for reform.
The perfect being the enemy of the good is one thing. It's something else when the compromise actually reinforces the root problem. We now have reinforced the idea that government gets to decide who can get married. Wrong direction.
And, so, until we correct the misunderstanding gay people should be excluded from being able to share custody of their children, be beneficiaries of social security, medicare, insurance, retirement plans, and visitation of the partners when in the hospital, etc., all things that heterosexual married couples currently enjoy under the law?
That's the wrong direction, and it is unconstitutional. The reality is that the world just got nicer for a lot of people. The theoretical "reinforced" root problem effects literally no one. Before today, that root problem existed. It still exists today. There is no scenario today for real people that is worse than yesterday.
I'm not willing to throw gay couples under the bus because it doesn't suit me that the government has a role in marriage. It has had a role in marriage for longer than you or I have been on this earth. This doesn't strengthen that notion in any way. The government has been granted no new power over your relationships than it had yesterday (just because you or I don't like that it has any say in relationships is not what is up for discussion), and it is disingenuous, or at least misdirection, to suggest otherwise.
Who is working to correct the misunderstanding? The majority of gays and their allies have the opinion that now government has blessed them, other groups can fight their own battles. Or worse and hypocritally throw up their own objections about how it's bad for society.
I'm disinclined to celebrate an expansion of rights of a group that mostly relies on a "gotta get mine" mindset than one of true principles of liberty.
"I'm disinclined to celebrate an expansion of rights of a group that mostly relies on a "gotta get mine" mindset than one of true principles of liberty."
That's absolute bullshit. That's "those people" kind of talk, lumping everyone who shares one characteristic into one group and dismissing their rights as meaningless because they aren't fighting for your preferred cause.
Among the most intersectional activists I know are queer people of color. They're the folks standing up for immigrant families in detention (which is a quite lonely activist area) at a much higher percentage than the population at large, for example. It's certainly not an issue I see white straight male libertarians get up about (I fit that description in many regards, but I'm frequently embarrassed by how self-involved and self-serving the so-called "liberty" movement is).
From my experience the majority view is what I stated- now that their rights are blessed, few are interested in standing up on principle for the rights of others. It's no different from me claiming your talking about libertarians is "those people" talk.
It's not "meaningless" to want equal treatment (or even special treatment, technically). But like I said, it reinforces government as the giver of rights and that's the wrong direction.
Yes, we want separation of church and state. But this decision says nothing about church. It affects only the state's role in marriage.
Here's a concrete example. Two people of the same sex want to marry. They get a marriage license. They find someone who's qualified and willing to marry them. They submit paperwork to the state, proving that they're married, and they become legally married.
The Supreme Court ruling doesn't require someone who's qualified to marry them, unless that qualified person is a state official. It doesn't, for example, require a Catholic priest to marry them. The Catholic church can still prohibit marriages between people of the same sex.
However, for purposes of employment, or involving government contracts, the Catholic church must recognize all legal marriages, including those between people of the same sex. But how much of a change does that actually represent? Before this decision, the Catholic church had to recognize legal non-Catholic marriages of all sorts for those purposes.
> What should happen is the government should stop defining marriage of any form (leave that to religion or personal tradition), and simply define all these rights under civil union (or a similar phrase with no significant religious/cultural attachment).
Hopefully this ruling will cause exactly that.
If the churches don't want same-sex "marriage", they now MUST lobby their legislatures to separate marriage from the civil contracts that it is conflated with.
Until this ruling, nobody was going to take up the task. States that might have done this were already legalizing it anyway. States that would be opposed weren't going to spend the time and energy to fight their own constituents.
Now, there will be motivation in the most conservative states to actually get that done.
I agree, but I believe it's seen as more complicated to reclassify existing unions in law. The UK recently promoted 'civil unions' to 'marriage' status rather than downgrading traditional heterosexual marriages to unions.
It sounds like you have bought into the fox news talking point that "marriage" is fundamentally a religious word and civil union is a legal thing. Merriam Webster's first definition talks about marriage as a union in law. It doesn't even mention religion at all in fact. Dictionay.com mentions both, though "legally" is mention before "religiously". The English word marriage, in the United States, can refer to either the government approved legal contract, or a religious ceremony. If we want to separate the church and state, let's invent a new word to refer to the religious aspects.
Correct. And the restriction on two people is also a cheap hack. It should be more like an LLC where multiple entities join for tax and other concerns. Full stop.
It has far less todo with what people want than it does with just taking what you can get. If gay couples had to wait around for the government to change the way it handles marriage they might as well just count on never having the option to join each other in a civil union.
Your ideas are great in theory but they don't really fit into the corrupt framework of modern day politics (or even throughout written history).
I have a question about this. I'm not saying I feel this way, but does this mean that religions that are opposed to gay marriage have to perform marriages for people who are gay? I.E. Catholics?
The only reason I ask is because many Catholics I know say this is basically her argument against gay marriage. They don't always care about civil unions (some do) as long as it doesn't affect their church.
Currently, are Catholic priests required to perform marriages for non-Catholics? I think they are not, even though the right to not be Catholic is constitutionally protected.
But just in case, the majority did insert language making clear that this is about what the government can and can't do, not about what religions can and can't do:
Finally, it must be emphasized that religions, and those
who adhere to religious doctrines, may continue to advocate
with utmost, sincere conviction that, by divine precepts,
same-sex marriage should not be condoned. The
First Amendment ensures that religious organizations and
persons are given proper protection as they seek to teach
the principles that are so fulfilling and so central to their
lives and faiths, and to their own deep aspirations to
continue the family structure they have long revered. The
same is true of those who oppose same-sex marriage for
other reasons. In turn, those who believe allowing samesex
marriage is proper or indeed essential, whether as a
matter of religious conviction or secular belief, may engage
those who disagree with their view in an open and searching
debate. The Constitution, however, does not permit
the State to bar same-sex couples from marriage on the
same terms as accorded to couples of the opposite sex.
There's controversy at the state level over whether religious photographers, DJs, bakers, florists, and wedding planners should be forced to participate equally in all weddings regardless of their religious belief. That's going to be the next big fight.
Photographers, DJs, bakers, florists are not religious organizations, they are for profit businesses. That's the big difference. They are business that are open to the public. The church has religious requirements for some of their ceremonies (such as first communion).
They are also often sole proprietors. Like independent software developers, they may not have a public "place" of business that is distinct from their home. What they do often amounts to contracts between private individuals and not so much businesses open to the public (like a restaurant or retail shop). I don't know enough about the law to say if this falls under a different set of rules, but it would seem reasonable that it might.
No, your local Catholic priest is not required to open the church to gay wedding ceremonies, just as they are not required to perform weddings for mixed-religion couples, or divorced persons, or any of a number of other reasons why they might object. Now, your local Justice of the Peace who happens to be Catholic? That's a different story. As a government employee they cannot discriminate.
No, they won't have to. I'll speak to this from the perspective of the Catholic Church, and how they'll avoid having to perform same sex marriages.
The Catholic Church can already deny anyone a church/religious ceremony. Suppose I'm a Catholic and was married within the Church and later divorced. If I don't receive an annulment, the Church will not allow me to remarry within the Church. I can still go elsewhere, but the Church will not perform the marriage or acknowledge it as valid (a later annulment can get the Church to change its stance on this marriage).
Similarly, the Church (in the US) typically requires 6 months of marriage preparation. If you refuse to go through it, they will deny you a marriage within the Church (a friend of mine went through this last year, they were impatient and couldn't wait the extra 4 months apparently).
With regards to same-sex marriage, the Church's stance will not change (certainly not in our lifetimes), they'll continue to view same-sex relationships as sinful. Consequently they cannot, from their perspective, sanctify a marriage of that sort. This is not, fundamentally, different from the other reasons they use to deny people a Church marriage.
Edit: Regarding your second paragraph, yeah, I hear that a lot. But they're ignoring the cases where the Church already denies marriages. I already had this discussion with a coworker who happens to be a Catholic deacon this morning. It's frustrating that so many Catholics (and others) don't realize that they've already got the freedom to deny anyone access to the sacraments. I can be refused communion by a priest if he knows that I'm an (unrepentant) philanderer or drug dealer or murderer or that I've been excommunicated by a bishop. They are not obligated to perform baptisms just because someone asks if those asking aren't willing to go through the steps and agree to the things the Church requires. They won't ordain me just because I walk up to a bishop in a cathedral and ask to be ordained. A church marriage is a similar sacrament that the Church has laid out requirements for, and refusing to comply with those means you won't get married in the Church.
What would this look like? My wife has no income because she is raising our children. Should she be eligible for welfare? Do I owe gift tax if she orders a pizza from our joint checking account?
Well, naturally, that only implies the welfare laws and taxes should change as well.
For instance, whether you get welfare or not shouldn't simply be determined by your income, but by an actual analysis of your circumstances: it should be provided based on actual need, not numbers.
The problem here is that it is a very major change, and it may cost a lot and take a long time and a lot of consideration, and that might make it politically untenable.
It is about Government benefits primarily. The government incentivizes marriage through tax breaks, etc. So the definition of marriage matters in administering these benefits. The legislative branch should first start with redefining the eligibility for these benefits to keep religion out.
Indeed. IMHO, I should be able to share with one (or more) people all the rights that marriage currently grants without it somehow being linked to an ancient religious ritual, even if only be name.
Marriage should be handled as religious rituals and nothing state-related at all.
I am relieved that this is the top post on this thread.
I feel like this is another case statement in the giant switch that is government legislation and that the god class that is government could do with factoring out the freedom for individuals to voluntarily associate.
Well you have the legal/civil marriage and the religious marriage.
You can call it "civil union" or whatever you want, but the important thing are the rights attached and that's what this ruling is about. Nothing to do with church, just the civil part.
As far as I can tell, on a societal level incremental change is the only sort of change that tends to happen. On a larger time-frame bigger shifts tends to come about as the result of lots of incremental changes.
"Getting married" is very easy and requires almost no expense and only a little bit of time. You don't need to plan at all for a civil marriage, just sign some paperwork. Drafting all the documents you'll need (will, medical directive, etc.) without a marriage takes lots of time and money (lawyer fees). Writing marriage into laws is a way to save families time and money and make everything simple for them.
I don't know if others felt it but my main feeling was that of anger. After watching the great joy and thankfulness (why should they being thankful!) from the LGBT community the only thought I could have was - How are we letting this situation to exist where elected and non-elected groups of people can decide to restrict or 'grant' joy to such a vast set of humanity.
I agree with you. An example of how bad things can get, we can look at ISIS. people governing a with religious rules will never go any good, mostly because religious rules were created a very long time ago for a completely different world.
That's an extremely selective example to support your view. For an example of the opposite, look at the Khmer Rouge, which governed with a specifically anti-religious stance, committed genocide and torture, and starved a large portion of their population. Or consider Stalin and Mao, who killed tens of millions each, or even the French Revolutionaries, who killed tens of thousands without trial.
Religion is not the source of evil, either in individuals or in governments. Evil is in people's hearts. Sometimes it is expressed via religious action, unfortunately. But the two should not be conflated.
"I believe you find life such a problem because you think there are the good people and the bad people; you are wrong, of course. There are, always and only, the bad people, but some of them are on opposite sides."
Modern marriage in the US is a civil union that has nothing to do with any religion, and the rights are already defined.
Notice that you have to apply to get married in the government office. Whether you have your ceremony in some church or elsewhere or not have it at all is your choice, and affects absolutely nothing.
What you're suggesting is that we rename "marriage" into "civil union" and do the same with all the laws and precedents. It's an expensive and stupid proposition, all in the name of dealing with some hurt feelings of religious fanatics that try to get their hands into the government business.
Is it possible that LGBT marriage rights were officially recognized because it was becoming apparent that the next step was to strip religion out of the discourse? Thereby losing a valuable beachhead in society? Nah. To conspiracy theory-ish.
The state has a vested interest in procreation (i.e.: creation of new citizens & taxpayers as others die off), so takes an interest in "marriage" as a means for facilitating the most efficient & effective means of promoting procreation, doing so by giving special benefits in return for parents taking on special obligations. Expanding the beneficiaries of those benefits to those to whom there is absolutely no chance (to the point of the notion being preposterous based on just 2 literal bits of information) of procreation is giving benefits to those whom will give nothing back in return.
The problem, as you sort of touch on, is that between evolution, religion & politics we've added abstractions & tangents to the issue, making most people think it's really about feelings etc instead of the base issue of procreation.
> The state has a vested interest in procreation (i.e.: creation of new citizens & taxpayers as others die off), so takes an interest in "marriage" as a means for facilitating the most efficient & effective means of promoting procreation, doing so by giving special benefits in return for parents taking on special obligations. Expanding the beneficiaries of those benefits to those to whom there is absolutely no chance (to the point of the notion being preposterous based on just 2 literal bits of information) of procreation is giving benefits to those whom will give nothing back in return.
So, you think marriage shouldn't be available for straight people who are both infertile?
You ignore the important role that marriage plays in mutual care. Marriage gives legal backing and support (in the form of certain tax and other financial and non-financial benefits) to a reasonably large set of people in long-term care relationships. Those people who care for each other aren't going to be needing as much support from the public purse to care for them when they get older, because they care for each other.
My dear old grandparents cared for each other when they were old - when my grandma died, my grandfather had to go into a residential care home. But because they were together, they provided care for each other that prevented both from needing that social care for a long time. Long term gay couples will give something back in return: caring for each other, providing health and wellness benefits that would otherwise be something that the welfare state may need to provide.
The state has a strong vested interest in people caring for each other. Here in Britain, the support given to parenting are done for parenting regardless of marital status in the form of child benefit payments.
> So, you think marriage shouldn't be available for straight people who are both infertile?
The rest of your argument around mutual care is reasonable. There are more nuanced views than a blunt "if state support for marriage depends on procreation, let's ban marriage for infertile people as well.", which sounds like spite: if I can't get it, then those guys over there should not get it either because they are similar to me on dimension X.
From the perspective of the state, there is a man, there is a woman, statistically they have a high probability of having and rearing children. Splitting hairs whether they are fertile / infertile is something the state shouldn't get into, partly because it's administrative hell and partly because it's an invasion of privacy.
With gay marriage, there is a man, there is a man, statistically they have close to zero probability of having children, so from the perspective of perpetuating the state, there is no statistically significant benefit in offering them special treatment.
We can now argue whether the state has the right to determine the gender of an individual, or whether that's an invasion of privacy as well. It's pretty easy to tell a man from a woman at birth. Biology and cultural norms make this distinction pretty obvious to anyone who's paying attention. It's both cheap and reasonable to tell apart men from women.
> It's pretty easy to tell a man from a woman at birth. Biology and cultural norms make this distinction pretty obvious to anyone who's paying attention. It's both cheap and reasonable to tell apart men from women.
The decades and decades of non-consensual infant "corrective" surgery of people with intersex conditions, leading to physical and mental damage (and in some cases involuntary sterilisation), suggests otherwise...
As any parent will tell you, pregnancy and childbirth are only the beginning of all that is involved in raising a child. And those can be contracted out: adoption has always been possible, and modern technology gives us the option of surrogacy. Plenty of gay couples are raising kids, and have been doing so for years.
You're just trying to rationalize your prejudice by pretending it's about fertility.
You're overreacting. "> So, you think marriage shouldn't be available for straight people who are both infertile?" is, sadly, quite close to spite. Pointing out that gay couples raise children in significant numbers is a constructive argument, though this implicitly recognizes that marriage benefits are, at least partly, about procreation and child rearing.
My cousin and the two kids that he and his husband adopted beg to differ. As do many, many other kids who might otherwise be in the foster care system consuming the resources of the state. The state has an interest in stable household formation, full stop.
Right, so we should add fertility tests to remove other people that have no chance of procreating from the marriage pool. We should also eliminate many of the benefits if couples don't produce children after a certain age and maybe even eliminate tax benefits after a certain number of years since a married couple's last child. Thanks for bringing this discussion back to the true soul of marriage: procreation incentives.
The government doesn't care if you plan to have kids when you get married, there's no tick box saying "You agree that this marriage license is only valid if you have kids.".
For most of human history, and without having to get into more specific details, a man and woman living together for more than a short time usually resulted in children. The institution was enacted to encourage such couples to avoid getting into such a situation unless they agreed to stay together, ensuring the likely offspring would be raised by their own parents (generally the best possible conditions).
There's no point in formal social recognition of a union if there's no chance of reproductive consequences thereof. And by "no chance" I mean "the notion is utterly preposterous", not "they may choose not to" or "parts don't work"; if literally two bits of information (one quarter of a byte) is enough to make the decision, that's enough.
>>> For most of human history, and without having to get into more specific details, a man and woman living together for more than a short time usually resulted in children. The institution was enacted to encourage such couples to avoid getting into such a situation unless they agreed to stay together, ensuring the likely offspring would be raised by their own parents (generally the best possible conditions).
Ridiculous concept. Most of human history was based on a gift economy, in small groups not couples, partly because it was unlikely to know for certain that one specific kid was yours. It's only later on that humans lived in smaller and smaller groups. The concept of a nuclear family is relatively new, in fact many societies still have the entire first degree family living together (India).
And besides, we're all tired of the argument, marriage today has little resemblance to its old form.
You know why you ask the girl's father's permission when asking her hand in marriage? Because traditionally, girls were the property of their fathers and it was literally a transfer of goods. So I don't really care what happened for "millions of years".
>>> There's no point in formal social recognition of a union if there's no chance of reproductive consequences thereof.
I beg to differ. There are many many many legal reasons one would want to get married to your loved one, I won't bother explaining them to you, as I'm sure you know them.
You can redefine the purpose of marriage however you want, but at the end of the day, legally there is no mention of procreation when you sign a marriage certificate. Unless you are seriously suggesting we should verify the fertility of couples before they get married?
The real reason for official recognition of unions is that, as a married man/woman, you are less likely to create damage to society, you are seen more stable, it has nothing to do with your ability to procreate.
The state has a vested interest in the prevalence of emotionally and financially stable, productive citizens. Anything more than that is emotionally charged fluff.
"Spouse" and "parent" are not synonyms. Fertility was never a requirement of civil marriage. Post-menopausal women were always allowed to marry, just one example.
So you're saying the government's "vested interest" should let it prohibit/nullify the marriages of heterosexual couples don't (or can't) pop out a child?
What about couples whose prospective offspring would be... undesirable to the state? Eugenics?
No, it's not about procreation, it's about social structures. Adoption is always a possibility.
For me and a lot of friends and family, marriage equality. Yay.
"It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality . . . Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry." (page 22, from the coverage on SCOTUSBlog)
For others, the opinion also reasserted that people who are really mad about this can continue to be mad and vocal about it, as guaranteed by the First Amendment.
"Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate." (page ~32)
I'm glad that my LBG friends can now marry anywhere. But damn, Scalia's counter opinion (and Roberts' opinion) strike me as well-considered and well-argued in the 2nd half of http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf . In brief, their view was that resolving this issue in the courts erodes the democratic process.
Can anybody counter Scalia, and say why the issue of gay marriage couldn't wait to be resolved by the states? Why is this class of license inequity different than other classes, where the states' right to license something is not resolved by SCOTUS?
> Can anybody counter Scalia, and say why the issue of gay marriage couldn't wait to be resolved by the states? Why is this class of license inequity different than other classes, where the states' right to license something is not resolved by SCOTUS?
Certainly with all the imagined legal expertise on HN, someone will answer. I have no expertise, but here's a shot at least from a moral point of view and based on some limited legal and political principles:
1) It can't wait because people are suffering now, today. Read Martin Luther King's 'Letter from a Birmingham Jail', where he points out that people who are not suffering always helpfully advise the oppressed to wait until later, 'until a more convenient time'. After I read that, I began to notice that pattern often.
2) We're not a democracy; we are, and this is essential, a constitutional democracy. Democracy is mob rule, or as someone said (Isaac Asimov?), 'democracy must be more than two wolves and a sheep voting on what's for dinner'. The Contitution, the Bill of Rights in particular, protects minority rights. It's not up to legislatures or the majority to grant or take away those rights. Civil rights are purposely excluded from the democratic process.
3) It's disingenuous to describe an issue of civil rights and the long-time oppression of millions as a dispute over licensing. Was segregation about hotel accommodations? Slavery and women's rights about employment disputes?
I think your third point is what's most striking about the dissenting opinion. Not providing marriage licenses to couples based on the arbitrary criteria of sex is a deliberate act of denying a specific group of people access to marriage.
The women's and civil rights movements went against the traditions of plenty of millennial old cultures such as the "Kalahari Bushmen and the Han Chinese, the Carthaginians
and the Aztecs"[0] as well.
> The women's and civil rights movements went against the traditions of plenty of millennial old cultures such as the "Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs"[0] as well.
Don't forget that liberal madness about replacing monarchs with elected government!
"The Union possessed features unique among contemporary states. Its political system was characterized by strict checks upon monarchical power. These checks were enacted by a legislature (sejm) controlled by the nobility (szlachta). This idiosyncratic system was a precursor to modern concepts of democracy, constitutional monarchy, and federation."
No, "minority" is correct here. Individuals who happen to be members of a majority do not need a Bill of Rights. Individuals who are a member of a minority do.
(edit: Holy cow this post got downvotes! If you think this is wrong please go read pretty much literally anything on the topic of the bill of rights by literally any of the founding fathers. Protecting the rights of democratic minorities was a very, very, VERY explicit goal of the bill of rights.)
"Democracy and liberty are often thought to be the same thing, but they are not. Democracy means that people ought to be able to vote for public officials in fair elections, and make most political decisions by majority rule. Liberty, on the other hand, means that even in a democracy, individuals have rights that no majority should be able to take away."
"Liberty, on the other hand, means that even in a democracy, individuals have rights that no majority should be able to take away."
"individuals have rights that no majority should be able to take away."
And yet, jrs235 is making an important point. The question is, which way does the causality run? Do individuals have rights because they're members of minorities, or do minorities have rights because they're composed of individuals? The correct answer, in my view, is the latter.
(Edit: Here is a summary of what happens below to save everyone time:
OP: 5 is a positive number.
jr: Correction: 5 is a number.
nm: That's a silly correction. It's more accurate to say it's a positive number, why are you correcting OP?
jr: But positive numbers are numbers!)
No, it is not an important point. It is a silly point that confuses the issue and is more wrong than right.
It is NOT accurate to say that it that the Constitution or Bill of Rights protects individual rights. They DO NOT protect individual rights. Instead, the Constitution provides for democratic self-governance bounded by some enumerated protections designed primarily to protect minorities. The hope was and is that these limited protections in tandem with democratic self-governance provide a system of government that will protect individual rights.
The Constitution and Bill of Rights is substantively and substantially different from a document that might enumerate a list of protected individual rights. Ensuring individual rights is the purpose and duty of the entire democratic process, not just the Constitution.
To make the point clearer, there are many items in the UN Declaration of Human Rights that the US recognizes (culturally) as being valid individual rights. E.g. The US provides universal access to education and the culture, on balance, recognizes access to secondary education as a fundamental right. But there is no constitutional prerogative for meeting this or other "rights" -- that's provided for legislatively. Georgia could defund its educational system tomorrow and the US Constitution wouldn't have squat to say about it.
In conclusion, the Constitution (edit)WAS NOT PRIMARILY DESIGNED TO PROTECT(/edit) individual rights. It protects primarily minority rights and provides for a system of governance that we hope will protect all individual rights.
(*edit, alternative wording for the paragraph above because jrs235 is nit-picking.)
> In conclusion, the Constitution does not protect individual rights. It protects primarily minority rights and provides for a system of governance that we hope will protect all individual rights.
The Constitution protects rights of individuals. It may not protect every agreed upon right. But the rights it protects belong to individuals (originally as drafted, those individuals were wealthy white land owners, not minorities like women or anyone else)!
The substance of my post above was that on balance, "minority rights" is a better characterization of the enumerated rights in the bill of rights than "individual rights".
Yes, saying "individual rights" isn't technically incorrect. But it's less accurate a protrayal than saying "minority rights".
Anyways, you're clearly ignoring the obvious intent of my posts in favor of stupid nit-picking. So I'm done.
The reason I press[ed] the issue of individual rights vs minority rights is because this quick summary gets read by others, assumed to be what matters, who then later don't believe that the rights belong to individuals, which gets repeated, which leads to the erosion of our individual rights.
>Ensuring individual rights is the purpose and duty of the entire democratic process, not just the Constitution.
And when the democratic process fails to protect individual rights, the Constitution, and more specifically the Bill of Rights, is the document that explicitly enumerates what the Government may absolutely not do.
May I ask where you received your education pertaining to the Constitution? And just to be certain (as I am currently assuming you are), are you an American?
> May I ask where you received your education pertaining to the Constitution?
From a constitutional law course taught by a professor with a JD from Harvard.
Again, rights of a minority are individual rights. But it's disingeneous to say that the constitution PROTECTS individual rights in general. It does not. It protects a small subset of individual rights that are most relevant when someone is in a political/racial/religious minority. Calling these rights minority rights is more accurate than calling them indvidual rights. In addition to minority rights, the consitutiton also provides a mechanism for ensuring other individual rights -- both de facto and de jure -- are protected.
Most of the founding fathers considered freedom from unreasonable taxation a plausible individual right. The Constitution doesn't provide explicit protections against that; instead, it provides self-governance.
Here is how I viewed this exchange:
OP: 5 is a positive number.
You: 5 is a number.
Me. That's stupid. It's more accurate to say it's a positive number, why are you correcting OP?
We typically call a person who disagrees with the majority a member of the minority.
> the majority
What majority? There are lots of majorities and lots of minorities -- one for each issue put forward to a group of citizens, and then a bunch of other cultural ones.
I doubt anyone is a member of each of those majorities. So yes, everyone needs these individual rights. But the rights were designed to protect individuals when they find themselves in the minority. So saying that the issue is individual rather than minority rights is disingenuous, confusing, and massively ahistorical. Again, many of these rights were explicitly designed to prevent violent mob rule. This issue is not up for debate. It is an historical fact. Go read what the founding fathers wrote about the Bill of rights.
What specifically can you point me to, what founding father, specifically wrote that the Bill of Rights was to protect minorities and not individuals?
I agree the founding fathers drafted the Constitution to prevent mob rule.
If a majority agrees we have freedom of speech, then we don't need the first amendment since it only protects minorities and minority opinions? The individual is the greatest minority, the Constitution protects individuals. Regardless of if an individual currently belongs to the/a majority or minority the Bill of Rights protects them.
EDIT: In other words, whether or not an individual is in the majority or minority opinion on an issue, the Bill of Rights protects the individuals to freely express their opinion. It's not as if an individual holds the majority opinion than they no longer get 1st Amendment protections. The rights belong to individuals not "minorities" (except in the sense that an individual is the greatest minority).
ADD: The founding fathers didn't care about minorities except themselves as individuals. They wrote the Bill of Rights to protect themselves individually.
See my response to ScottBurson. The Constitution does not protect individual rights in general. Instead, it protects a small set of individual rights that are most relevant when that individual finds himself in a minority, so-called minority rights.
It was expected that democratic self-governance would protect against other basic rights (e.g., to freedom from unreasonable taxation, the right to not be raped and murdered, etc.). But most individual rights are not listed in the Constitution, because the purpose of the constitution was to establish democratic self governance with protection for minorities against mob rule. NOT to provide for individual rights.
> What specifically can you point me to, what founding father, specifically wrote that the Bill of Rights was to protect minorities and not individuals?
Read Thomas Jefferson's First Inaugural Address, for starters.
Of course rights of minorities are individual rights, since minorities are composed of individuals. But the constitution was designed specifically to protect the rights of minorities, not to protect individual rights in general. The assumption was that democratic self-governance would provide for "little-r" rights; i.e., for fir and just governance.
Thomas Jefferson didn't say "I'm concerned about Sam and Henry over there... they might be in the minority on some opinion or issue in the future so I think we should draft a Bill of Rights to protect them." He probably thought, "I don't want to be screwed over by the majority. Perhaps I should draft some things to protect ME."
Because "ME" could be in the minority, whether by myself or 49.9% of the people.
Sure, they drafted rights to protect them in cases where they were minorities. Isn't that exactly what I'm saying?
I bet Jefferson didn't want to be raped. Wonder why he didn't make that an amendment? Could it have been because he figured that right could be provided in a non-constitutional setting?
I'm not saying they don't have those rights, I'm saying they don't need them. Not at the particular moment when they are expressing an idea that the governing party agrees with.
If you agree with a supermajority of Congress and the President on issue X, your first amendment rights to say you support issue X aren't really super important. Of course you should still have them, but they are easily protected by way of democratic processes -- constitutional provisions aren't necessary when the lawmakers are on your side.
>The Contitution, the Bill of Rights in particular, protects minority rights...
You are jumping to the consequences of the Constitution, the Bill of Rights in particular, protecting individual rights.
Because the Constitution, the Bill of Rights in particular, protects individual rights, minority rights are protected.
> constitutional provisions aren't necessary when the lawmakers are on your side.
Except when the lawmakers are in the minority (and you being in the majority), the majority still needs protections. Since its the individuals, not minorities that are protected, the rights of the [individuals in the] majority are also protected.
You're confusing the logical consequence with the historical reality.
The historical reality is that the rights enumerated in the amendments were designed specifically to protect minorities.
Yes, "individual rights are minority rights" implies "minotiries get rights". But if the primary purpose was individual rather than minority rights, then why in god's name aren't other more obvious individual rights (e.g., right not to be raped) enumerated as constitutional amendments? The answer is because the legislature can and will do that anyways.
Because with rape there is an obvious harm and injury incurred upon another. In suppressing speech or taking away arms, what is the explicit injury inflicted? What injury is inflicted in allowing government agents to enter your house whenever they want vs burglars? Because the protections enumerated in the Bill of Rights are difficult to argue that injuries and harm have been inflicted. The answer is because there is/was a legal framework that existed to deal with bona fide injuries and harm inflicted.
Legally, you are right. Morally and practically, I'm not so sure. Few hearts and minds are changed as a result of the supreme court's rulings, just the code powering the justice system. Convincing 5 of the top judges is easy compared to convincing the populace, and the latter is more important for the long term goals of equality.
Federally legislated social change pushes back the more important goals of social equality and cultural integration. These are arguably more important, as our interactions with marriage laws are a relatively minor part of our lives when compared to our interactions with other people.
The historical precedent here is clear, of course - there are no and have been no segregation laws in America for decades as a result of federal action, but you'd be silly to say that segregation does not exist in America.
> Today's decision pushes back the more important goals of social equality and cultural integration. ... there are no and have been no segregation laws in America for decades as a result of federal action, but you'd be silly to say the result was that segregation does not exist in America.
As a counterpoint: Since the civil rights era, the welfare and integration of the black-skinned Americans has improved dramatically. Some argue that desegregation alienated more hearts and minds than it helped, but I've yet to see any evidence. Certainly American opinions about blacks also have changed dramatically. (But I agree that we do have a long way to go.)
> No hearts and no minds are changed as a result of the supreme court rulings, just the code powering the justice system ...
I'm not sure no hearts and minds were changed -- I suspect many will reconsider, having seen the decision of a respected institution and the direction of society -- but I agree that you can't do that by court order. But there is a very substantive change: Gay Americans now can get married!
Good points. "Few hearts and minds" is more accurate.
> Some argue that desegregation alienated more hearts and minds than it helped, but I've yet to see any evidence.
It's a question that isn't easy to answer empirically, but it's not outside of the realm of possibility that we would today have a less segregated of a society if segregation had come been eradicated in each community separately and via local and state laws rather than federal action.
All that aside, I think legal equality is a worthy cause and a great victory on its own. I hope we do not forget about social equality and cultural integration as worthy causes, as well.
> No hearts and no minds are changed as a result of the supreme court rulings, just the code powering the justice system.
A lot of the "hearts and minds" you talk about are animated by "tradition", which is often code for "continuing to do the thing I grew up with". The legal code changes what people grow up with, thereby changing future hearts and minds.
Take a look at the graph of approval rates of interracial marriage:
Some of the change there is changing hearts and minds. But a lot of it is just the replacement of bigoted hearts and minds with new ones.
As Max Planck wrote, "A new scientific truth does not triumph by convincing its opponents and making them see the light, but rather because its opponents eventually die, and a new generation grows up that is familiar with it."
And if that's true for science, it's much more so for cultural things like this. I think there's little point in continuing to harm GLBT families in the hopes of preserving the delicate feelings of people who were unlikely to change anyhow.
On the flip side, SCOTUS rulings have the power to accelerate trends already happening in society. Making segregation in schools and in housing illegal does not eliminate racism. But it does lead to a generation of people that aren't raised in schools and neighborhoods that only have people of one race.
> Today's decision pushes back the more important goals of social equality and cultural integration. These are arguably more important, as our interactions with marriage laws are a relatively minor part of our lives when compared to our interactions with people.
We've proven as a society that this won't happen without administrative action being taken from the top.
The legality has real consequences for people right this second, so waiting for the tide of change is absurd to ask of those that are affected.
Both fronts can be attacked simultaneously.
Though, I do agree there is a trend to pass a stopgap measure and to then pretend the problem is fixed.
This is a logically-consistent line of thought that---inconveniently---doesn't seem to align with evidence.
Historically, it seems to be the case that when society legalizes something, and people can observe that under that new order, society doesn't crumble, societal attitudes on the morality of that thing change to reflect the reality (albeit slowly).
Consider women's suffrage. Consider no-fault divorce. Consider black men and white men being forced to serve side-by-side in WWII by the draft, then coming home to a country that still treated them unequal in the eyes of the law.
It's not a 100% consistent scenario (contrast abortion rights debate in the wake of Roe v. Wade), but the trend is for culture to adapt in the face of evidence.
No hearts and no minds are changed as a result of the supreme court rulings, just the code powering the justice system.
This assumes that peoples' moral judgments aren't influenced by societal opinion and that societal opinion isn't influenced by laws and the opinions of its leaders/elites. That seems like a tough case to make.
Today's decision pushes back the more important goals of social equality and cultural integration.
Hearts and minds are more easily influenced by the status quo than one might think. People whose opposition wasn't obsessive tend to take note of the fact that they know some friends of friends who had one of those gay marriages and they're apparently very happy, whilst their pastor who gave such eloquent warnings about the impending moral breakdown of America whilst the anti-gay-marriage ballot initiatives were being drawn initiatives has changed the subject of his moral crusade to something else, and above all it doesn't really doesn't seem worth revisiting the issue or worrying about homosexuals at all when they could be mobilizing to save unborn babies, their constitutional right to lethal weaponry or the immortal soul of their atheist nephew. When change is less drastic than you feared, it becomes easier to accept than you anticipated.
Sometimes an upvote isn't enough. This is probably the most thoughtful writing I've seen on the topic today. Well done for someone that is not an expert. :-)
Scalia's argument isn't that marriage equality is an issue for the states. It that it's an issue for the legislature; that is, that the people should decide on it, rather than an interpretation of our secular scripture.
It's helpful to remember that the balance of powers were carefully designed, with an overarching purpose of not centralizing power into a monarchy or aristocracy. We are by design not a nation governed by a panel of philosopher-kings.
Because the Supreme Court has lifetime tenure --- a design feature intended to isolate the justices from politics, not embed them in it --- there's a lot of tension involved in their powers. Unlike politicians, they can't easily be removed if there's a popular outcry against their decisions. They're the guardians of the Constitution. But the Constitution is first and foremost a document of procedural safeguards: it is most coherently and powerfully understood as a mechanism to ensure that all citizens have open channels to the decision-making of their own governance. The procedures of US government are meant to be zealously protected, but the substance is supposed to be left to the people.
So a lot of the dissent in today's result is best read as, "regardless of what we think of marriage equality, who are we to override the decisions of the people?" And further militating against today's substantive intervention by five pro-equality justices is the fact that marriage equality isn't really a process right. Whether or not your marriage is recognized has actually not much bearing on whether you're capable of making your voice heard.
Of course, there are even more powerful arguments in favor of marriage equality. For one thing, the black letter language of the Constitution, right smack in the beginning of it prior to any amendments, requires all the states to honor each other's judicial proceedings, public acts, and records. To allow Mississippi to reject a Massachusetts same-sex marriage is to contravene the process set up in the Constitution directly. That can happen, but probably not when the conflict is animated entirely by discrimination against a class of people.
All this is just to say: don't be too quick to discard the intellectual argument against Supreme Court-enforced marriage equality. There will be times in your life where the same arguments are going to make a lot more sense, applied to other issues.
You make excellent points and make them well. I would add: Let's not take the arguments entirely at face value. People facing defeat in federal court have long tried to hide behind states' rights (used for segregation and abortion, for example) and that any court decision that overturns legislation is democratically illigitmate.
> "regardless of what we think of marriage equality, who are we to override the decisions of the people?"
The courts were created, intentionally, as a check on the legislature and executive. Also, the will of the people as expressed in the Constitution, that all citizens are due equal protection and due process, is as democratically legitimate (and overrides) their will as expressed through the legislatures.
At the same time, as you say, there are legitimate concerns about the limits of judicial power, and they should be examined and advocated for, even if the advocacy is, as usual, for political convenience and not for principle or public good.
>Of course, there are even more powerful arguments in favor of marriage equality. For one thing, the black letter language of the Constitution, right smack in the beginning of it prior to any amendments, requires all the states to honor each other's judicial proceedings, public acts, and records.
It's not clear cut as you imply. If it were, Concealed Carry Licenses for handguns would have reciprocity everywhere.
Another really helpful thing to remember about the Constitution is that it's incoherent. The framers were not logicians and the Constitution was not an exercise in formal consistency. There are provisions and even rights that conflict directly with each other.
And that's by design, too. The idea is to set up an enduring process that will generally converge, like a good distributed commit algorithm, on the citizenry having access to the channels of power. When that system arrives at a circumstance that implicates a conflicting set of Constitutional mandates, the design of the system is "fuck it, let smart judges chosen (at some remove) by the people resolve that."
The justices are supposed to be referees. They aren't supposed to change the outcome of the game. But anyone who's ever watched more than a couple baseball games knows that it's tough to keep refereeing and outcomes separate.
It happens to make sense to me that (a) allowing MS to deny full faith and credit to MA marriages is overt support for discrimination against LGBT people: it's using an implied principle (respect for people's belief in religious sanctity of marriage) to upturn an explicit principle, and (b) allowing MS to effectively monkeywrench the decisions of other states, so that you're effectively un-married if your job moves you from IA to MS, is undemocratic. So I think the refs made a good call this time. But reasonable people can see it differently.
As a libertarian, the less government is involved in marriage, the better. So yay!
But Scalia's argument is the stronger here. And there will be a time when this kind of reasoning is used in a way that will not be good.
Historical sidebar: back in the 90s, there was a rash of state governments passing "defense of marriage" laws. There was one at the federal level. At the time, the best argument I heard against such laws was that they were idiotic: there's no way the federal court system would start mucking around with marriage.
As I said, today's decision is a good thing. But I am very disturbed that many very intelligent people thought this was none of the court's business. For a fundamental issue like this, it's not a good thing that nobody knows even whether it's relevant to the court or not.
Scalia's argument is not new and goes back to before the civil rights era. It was wrong-headed then and it's wrong-headed now.
> there's no way the federal court system would start mucking around with marriage.
And maybe if fed and state governments hadn't felt the need to placate the angry mobs by passing super discriminatory laws, the court never would have had the demonstrable harm necessary to step in and make a ruling.
> For a fundamental issue like this, it's not a good thing that nobody knows even whether it's relevant to the court or not.
That's kind of the hitch though, isn't it? We wouldn't even need the courts if there weren't always fairly smart people (smart enough to get elected, at least) who disagree that minorities should have Rights.
Court decisions to confer Rights are tricky because the procedural question is exactly the substantive question -- if Gay people have a Right to marry, then the court has no choice but to step in. And if they don't, then the court has no choice but to stay hand off. And whether they have that Right depends, basically, on your opinion. As Kennedy pointed out, the due process and equal protection clauses were written in an intentionally non-explicit way.
Edit: For example, it would be absolutely insane today for us to imagine the equal protection clause not providing a basis for banning discrimination based on race. Obviously, either our constitution forbids that practice under the Fourteenth Amendment or else our Constitution is seriously, seriously flawed. Right? Right. Now, go read the Plessy v. Ferguson decision.
There is a clear distinction between granting rights and denying rights. The Supreme Court should not be actively denying rights to people, unless it is clearly called out in the Constitution or state law. This is not one of those examples.
And thus far this court has been fairly consistent in granting rights broadly. This ruling stands in that tradition, but this time in a direction ideologically opposed to the right.
Yes! I really, really liked Ely's _Democracy and Distrust_. I don't know how current its ideas are (it's from 1980), but someone recommended it on some legal thread somewhere and I found it both super easy to read and also very illuminating.
The Supreme Court can be overridden by a Constitutional amendment, the process of which empowers state legislatures--either to approve an amendment offered by Congress, or to go around Congress itself with a Constitutional convention.
So, I think it is incorrect to say that today's decision takes the matter of same-sex marriage out of the hands of the people, or the hands of the states. Rather, it raises the bar that a government process must meet in order to discrimate by gender when recognizing a marriage.
This is a case of states violating the constitution of the united states. It's a pretty clear violation of equal protection. It's not up to the states to decide this.
Rights of a minority should not be left to the democratic process.
Yes, but why this minority? Why not allow 12 year olds to marry as a consititutional right? Why not allow brothers and sisters to marry? I'm not trying to make a slippery slope argument. I'm really asking.
States license things all the time, and the conditions of their licenses block certain people from doing certain things. Why are the courts blocking the right of states to license this activity (marriage) in this particular case?
Again, I'm personally happy with the outcome. It feels as wrong to me to say the LGBT can't marry as it would to say an interracial couple can't marry. But Scalia asks what the legal reasoning is, not whether it's the right outcome. What's different about this minority or this situation?
> Why not allow 12 year olds to marry as a consititutional right?
Marriage is a legal contract. 12 year olds can't enter into legal contracts (alone). Therefore, 12 year olds can't get married. This also takes care of pedophiles marrying children.
Gay people are born gay. So this is different from polygamy. Animals can't enter into legal contracts. So this is different from bestiality.
As an aside, my girlfriend just pointed out to me that it is hard to justify laws against incest (two adult relatives). Maybe we shouldn't have such laws.
The best way, in my opinion, to look at this issue is to see marriage not as some kind of weird lovey-dovey thing, but to see it as what it is, a legal contract that has special consideration in many areas of the law and society.
>As an aside, my girlfriend just pointed out to me that it is hard to justify laws against incest (two adult relatives). Maybe we shouldn't have such laws.
I don't think we should have them. We only have them because its "eeeewwwww." Social taboo. Cousin marriage is legal in most of the east coast, including in my state and cousin marriage wasn't taboo historically.
In non-cousin marriage states it would be hard to enforce such a ban anyways. Do you have to prove you aren't related when you get your license? Who is going to find out? Who is going to care? Is the IRS going to challenge you? Is your employer going to find out your spouse is actually your cousin, know that is illegal in the state you got married in, and then deny your spouse benefits because your marriage wasn't technically legal? Probably not.
"Genetic problems" is compelling in some ways (but probably overblown) but you can have sex without marriage and marriage without sex and have sex without children (especially in the case of same-sex sex, post menopause sex, sex with someone who had their gonads removed, sex with inter-sexed persons... I can go on...)
I would also say it is your choice to have children with genetic problems - I mean we don't actually outlaw it. If two people were carriers of a terrible disease we don't punish the parents for knowingly taking that risk. We don't punish parents who have children much later in life (children born to parents of advanced age have a higher chance of a few diseases such as Down's Syndrome.)
The reason we have these laws is nobody has challenged them in court yet and is not likely to because not to many people want to marry their sister enough to file a federal lawsuit and I'm not aware of too many people who were arrested for incest (regardless if they were practicing it or not).
Legislatures can pass any laws they want. It can only be challenged by judicial review after said law is passed.
Having a child is always a genetic lottery. At what point does some somewhat advanced probability of some disease become "choosing to have compromised children"?
Gay people do not have to be born gay, even if the radical majority tend to be.
There is nothing that prevents a person from deciding they want to experiment sexually, or completely alter their sexual identity, at any given time.
It would be a form of bigotry to proclaim that straight people can't choose to be gay of their own free will, and vice versa. It would imply we're not in control of our own sexuality, and that we lack free will.
And this is not a support of the bigots that proclaim that being gay is always a choice and that gay people should just stop pretending and change their minds --- those people were always in the wrong, their argument was always vile. Sticking to the: gay people are all born gay, premise, is a defeatist response to that bigotry, it's a very very poor defense when a defense is not needed at all.
The proper position is: if I want to be straight or gay, it is my choice, period. If I'm born gay, that's fine; if I'm born gay and want to be straight, that's fine; if I'm born gay and only want to be gay, that's fine. And so on.
I am not sure I can buy into the "it's a choice" camp.
If you were a avid meat enthusiast, you owned your own meat smoker, held barbeques on the weekend, and your license plate said "3atmeat". if you woke up one morning and said, "You know what? Imma be a vegetarian" there is something disingenuous about that. Even if you decide that the treatment of animals by the meat industry is cruel, and you chose to abstain for ethical reasons, if a perfectly cooked and seasoned steak was presented to you, you would probably salivate.
Now, instead, if you found yourself never really enjoying meat, and found that dining without meat was more pleasant to you, then it would seem you were always a vegetarian, or at least have vegetarian leanings. and did not realize it.
EDIT: with respect to the person below: to be clear I am not saying that being gay is necessarily genetic. Perhaps neurological, but my claim is that you cannot fight against what feels natural without some repercussion
That's arguable - folks are notoriously incapable of controlling their sexuality, to the point its reasonable to postulate free will has nothing to do with it.
It may be a moot point though, i've always felt that it's a gray area - not black or white.
Eg, i could feel/claim to be entirely straight. But if i have a drunken experience in college, perhaps i realize that i enjoyed it a bit. Did i change? Or was i never "100% straight" to begin with?
Who's to say that you can't even be wrong about your own sexuality? We're wrong about things all the time, even within our own minds. Is sexuality any different? I doubt it.
The idea that you're born straight or gay appears to be created by a desire to separate humanity. You're in one camp, they're in another, and with that separation you can judge them differently.
Interesting how it all comes about though. We're complex creatures in everything we do, it seems.
> The proper position is: if I want to be straight or gay, it is my choice, period. If I'm born gay, that's fine; if I'm born gay and want to be straight, that's fine; if I'm born gay and only want to be gay, that's fine. And so on.
I agree completely. I always thought that the biological argument was a red herring meant mostly to sway those that couldn't be swayed anyways (those that thought gay impulses were aberrant). The moral argument remains the same whether someone is born gay or choses to become gay.
> Gay people do not have to be born gay, even if the radical majority tend to be.
I thought about noting that "most" gay people are born gay, but I didn't. It doesn't really matter for my argument, provided that at least some gay people are born gay. The point is that you can't equate polygamy and gay marriage because polygamists make a conscious choice to be polygamists, they aren't born that way.
I would actually be fine with polygamy (I think the correct term is actually polyamory), but it is a commonly used argument against gay marriage because most people are against it or find it uncomfortable, and it has a pretty ugly history in some areas. I was trying to refute the "slippery slope" class of arguments against gay marriage, so I gave a refutation for that one.
> Marriage is a legal contract. 12 year olds can't enter into legal contracts (alone). Therefore, 12 year olds can't get married.
Marriage is a formal relationship between two people of the opposite sex. Two men or two women are of the same sex. Therefore two men or two woman cannot marry.
You can do anything, if you redefine the meaning of everything.
There's nothing about marriage that necessitates restricting it to members of opposite sexes. It is however a contract, which requires restricting it to persons that are capable of consent. Exclusion conflicts the basic premise of equal rights so the exclusion has to have valid reasons other than "because that's how we defined it".
A more interesting question would be why it's restricted to natural persons and why it is restricted to two persons.
> There's nothing about marriage that necessitates restricting it to members of opposite sexes.
There's nothing about contracts that necessitate restricting them to persons capable of consent, if you decide to define contracts not to require consent anymore.
If you feel free to redefine the nature of marriage, surely you can also feel free to redefine the nature of contracts.
Contracts, by their nature, require consent. If there isn't consent, then there literally isn't a contract. Do you and I have a contract saying that you'll give me all your money? Without consent, we might. I'll be expecting a check from you within a week.
Marriage, by its nature, as seen by the government (that is an important qualification), requires nothing more than two consenting individuals. In the eyes of the government, marriage is nothing but a contract between two people. If your religion wants to define it some other way, that's fine with me. But from the standpoint of our government, the way your religion defines it makes no difference, nor should it.
I would actually be perfectly fine with renaming the legal institution of "marriage". It would actually be better if no one could get "legally" "married". Just call it a civil union. If you want to have a religious ceremony, great, but all the government would recognize is a civil union contract. However, most people don't agree with me, so we're stuck calling it marriage even though it has nothing to do with religious traditions.
> Contracts, by their nature, require consent. If there isn't consent, then there literally isn't a contract.
'Marriages, by their nature, require a man and woman. If there aren't a man and woman, then there literally isn't a contract.'
You're not arguing: you're just asserting. One surely could have a piece of paper legally called a 'contract' which states that I owe you money, but to which I have no consented. The fact that it's not what you & I and the law today would call a contract would be irrelevant if the law changed tomorrow.
Heck, we have a constitutional amendment forbidding involuntary servitude except as punishment for a crime, and yet we have a draft and people can be forced to work for others. Words have lost their meaning.
> Marriage, by its nature, as seen by the government (that is an important qualification), requires nothing more than two consenting individuals.
As of today, in this country, that's true. A few days ago, it wasn't. Anything can mean anything once words stop meaning anything.
> I would actually be perfectly fine with renaming the legal institution of "marriage". It would actually be better if no one could get "legally" "married". Just call it a civil union.
That's what I've advocated for. And it shouldn't be limited to two people having sex with one another, either. If a fraternity wish to form a temporary civil union in order to secure health insurance or ownership of their home, let them. Why does the government care who's having sex with whom, if that sex cannot create children?
> As of today, in this country, that's true. A few days ago, it wasn't. Anything can mean anything once words stop meaning anything.
No, it was never true. What about marriage makes it specifically require a man and a woman? There was never anything in the government definition of marriage that meant that it required a man and a woman. There was never any requirement to have children, or even to be able to have children. The only reason "marriage" required a man and a woman is that laws had been passed to make it so.
In other words, you could take every word written on marriage in the legal code and apply it, without alternation other than fixing the pronouns, to a same-sex marriage. Marriage didn't change, it just became available to more people.
> What about marriage makes it specifically require a man and a woman?
Is that a serious question? What do you think marriage is, State recognition that two people want to have sex exclusively? Why does it even make sense to have State recognition of a sexual relationship? It really doesn't.
Now, I don't think it makes particular sense to have the State recognise sexual relationships which may produce children, because there's no real need for it too: modern paternity testing can easily solve the actual problem civil marriage addresses.
As for the rest, why should those civil benefits be limited to people in a sexual relationship? Why should I be able to put my brother on my insurance? Why shouldn't a fraternity be able to form a civil union if they wish?
What possible benefits does civil marriage confer that should be restricted to two people who have sex, but not restricted to two people who might produce children?
Yes, but "it's icky" didn't form arbitrarily, ex nihilo. If you go one level deeper and ask why it's considered icky, you may find justifications, some good, some bad, some outmoded, some relevant.
I should preface this by saying that Christmas dinner at the Hluska household is already complex enough...:)
On a serious note though, you allude to one of my favourite aspects of law. Throughout history, views on brother-sister marriage have changed. At points/places, it has been perfectly fine for brothers and sisters (especially in elite families) to get married.
I am far from an expert in this field so can't speak to why our norms changed. If you want to take this further, you should start with the Westermarck effect and look into the kibbutz study. Or, maybe consider how marriages between families evolved as a way of formalizing business or other strategic relationships. Either way, taboos are cool!!
For example, in ancient Greece, homosexuality was fine. Hell, even Zeus advocated it as a way to prevent pregnancy. Yet, by the early 1900s, it was considered mental illness through much of the world. Taboos are always in flux and I can't figure out why. Logically, you'd think that science and information sharing would make us all more liberal and taboo-proof, but I'm not sure that is happening.
> Logically, you'd think that science and information sharing would make us all more liberal and taboo-proof, but I'm not sure that is happening.
I think you're right - but i also think you're underestimating the lack of science minded individuals in the ones who are less liberal (such as in the US).
The 'inbreeding' argument doesn't, and has never, held water. Not that I'm about to jump my sister; but as a point of science its not terribly significant. Cousins can actually have closer DNA than siblings; cousins are often allowed to marry (varies state by state). The idea that only horrible monsters will result is silly; its how all purebred farm animals are created.
The main argument against incest that I know of pertains to recessive genetic diseases. Suppose one parent has a recessive disease, and the other does not (P generation). Then F1 generation may have carriers, but will not display the disease. If F1 mate together, however, then the F2 generation may contain individuals who are homozygous for the recessive allele, so they will display the disease.
There was a case in which this happened, the "Blue Fugates" [0], who had a particular recessive disease[1].
This argument made sense before genetic screening was available, but falls apart with genetic screening, since you could screen the siblings to see if they are both carriers.
Children (minors and the "age of majority") and age of consent is defined by law. While we have come mostly to an agreement on the age of consent for many things, nothing prevents us from changing our definitions or age of consent for varying activities.
The age at which the brain is capable of the higher levels of executive function necessary to make rational, informed decisions (not saying that such decisions are guaranteed, just that the brain is capable of considering them) is a function of biology, i.e. defined by natural law.
The legal framework of consenting age protects the abuse of a minor's inability to "think like a grown up", though it's arguable if the age of consent is too low (because biology dictates an older brain has a matured executive function capacity) or too high (because some kids, as many can attest, are wise beyond their years).
>> Why not allow brothers and sisters to marry?
>Claimed societal interest in preventing harm to offspring born from inbreeding.
They can produce offspring without a marriage. Or, if it would be allowed, they could marry and dont produce offspring. Dont see how one is connected to the other.
Its not a question of reasoning. All you need is a lobby big enough and enough time and you are allowed to do whatever you like to do. Marry a 12 year old, marry a pet, marry a car..
>Claimed societal interest in preventing harm to offspring born from inbreeding.
If that's a valid argument, why isn't the same argument [1] against gays valid? Conversely, if greater risk isn't enough of a constitutional reason to allow bans on gay marriage, why is it enough to make incest bans constitutional?
They might; something being officially sanctioned might increase the frequency.
Can you at least see a reasonable comparison between the two? If you don't think changing marriage laws affects behavior, shouldn't that apply to incest as well?
It seems to me that "legalizing gay marriage won't increase gay sex overall" and "legalizing sibling marriage won't increase sibling sex overall" are likely to be inconsistent with each other, and that the first is implied by your wording; if gay sex increases, it should also increase "unprotected sex with multiple partners".
Are you kidding around at this point? On average, people who are married are going to have sex with a smaller number of distinct partners than people who aren’t married. Gay marriage, if it has a significant effect on gay sexual behavior at all, will clearly reduce the risk of HIV transmission.
With regard to sibling marriage, the issue isn't sex per se but children. Although I am not myself deeply opposed to sibling marriage, there are many couples who strongly prefer not to have children outside of marriage, so it is quite reasonable to assume that banning sibling marriage will reduce the number of children of siblings. In contrast, it would simply be laughable to suggest that any significant fraction of gay people who have unprotected sex reserve unprotected sex for marriage. If that were so, HIV would not be a problem in the gay community!
So, no, there is obviously no reasonable comparison between your two cases, as a few moments of thought would make clear.
>On average, people who are married are going to have sex with a smaller number of distinct partners than people who aren’t married. Thus, gay marriage, if it has a significant effect on gay sexual behavior at all, will clearly reduce the risk of HIV transmission.
You're neglecting the possibility of increased gay sex due to wider acceptance, which would affect even unmarried gays.
Can you make the argument for higher risk from legalizing incest in your own words, so we can see why it wouldn't apply here?
I'm neglecting it because it's not a realistic possibility. You can't just imagine any old wacky scenario and use it as the basis of your argument -- it has to be plausible.
Gay marriage would most likely have no significant effect on male-to-male HIV transmission rates. In contrast, it is quite obvious that legalizing sibling marriages could encourage siblings to have children, thus increasing the risk of babies born with genetic defects. That being said, it is not clear to me that this constitutes sufficient grounds for making sibling marriage illegal, and I am not strongly opposed to legalizing it.
If you seriously think that there are lots of gay men out there just waiting for gay marriage to be legalized so that they can have lots of unprotected sex, then you really need to increase the diversity of your social circle.
>Gay marriage would most likely have no significant effect on male-to-male HIV transmission rates. In contrast, it is quite obvious that legalizing sibling marriages could encourage siblings to have children, thus increasing the risk of babies born with genetic defects.
Is there any difference between the two that's relevant legally? And do you have any more robust defense for the distinction? Your argument above made some sense when distinguishing overall gay sex increasing from risk increasing, but you seem to have abandoned that in your last sentence.
>If you seriously think that there are lots of gay men out there just waiting for gay marriage to be legalized so that they can have lots of unprotected sex, then you really need to increase the diversity of your social circle.
I could say the same about sibling marriage for you. "If you seriously think that there are lots of siblings out there just waiting for sibling marriage to be legalized so that they can have lots of unprotected sex, then you really need to increase the diversity of your social circle."
I wasn't expressing any opinions on what any particular law would lead to, just that the reasoning being used was inconsistent.
>You can't just imagine any old wacky scenario and use it as the basis of your argument -- it has to be plausible.
But this exact scenario is the basis of the argument above against sibling sex.
>Is there any difference between the two that's relevant legally
Yes, the difference between how gay marriage would affect the risk of HIV transmission vs. how sibling marriage would affect the incidence of genetic defects in babies.
>Your argument above made some sense when distinguishing overall gay sex increasing from risk increasing, but you seem to have abandoned that in your last sentence
I'm not sure what you mean. Gay marriage will neither increase the total amount of gay sex nor increase the risk of HIV transmission. There is simply no connection between HIV and gay marriage, so it would make no sense to try to use HIV to justify a ban on gay marriage.
>I could say the same about sibling marriage for you
You could, except that it wouldn't be true. Having children outside of marriage is still a big deal for a significant number of people. Unprotected casual sex is, virtually by definition, not something that appeals primarily to people who want to get married. Again, the facts are important. You can't just make up crazy hypothetical scenarios and use them as the basis of your argument.
Be civil. Don't say things you wouldn't say in a face-to-face conversation. Avoid gratuitous negativity.
When disagreeing, please reply to the argument instead of calling names. E.g. "That is idiotic; 1 + 1 is 2, not 3" can be shortened to "1 + 1 is 2, not 3."
---
They didn't have to include the postscript. It came off poorly. I'm not posting this to social media trying to get OP fired, but I will call out when people include contentless swipes at other peoples' legitimate posts.
He didn't say anything about 12-year-olds marrying each other. You're assuming that's what he meant. He could have meant that, or he could have meant 12-year-olds marrying 40-year-olds.
> There's no evidence that sibling marriage results in defective offspring. It's simply the fact that we find the idea of siblings having sex to be icky
Did you read Your citation? Because it doesn't back up your assertion. It's says that for for first degree relations (brother-sister or parent child) the risk of death or severe defect increases 31.4% over the general risk. It doesn't say what the general risk is, but I assume it is relatively rare, on the order of 1 in 1000 or fewer. So risk to offspring from siblings would rise to about 1.3 in 1000. I would hardly call that proof that sibling marriage results in defective offspring.
The opinion goes into strenuous detail on the history of marriage cases before the court. This decision was not tearing down "what is marriage?", but pivoted (for Justice Kennedy, who was the deciding vote and wrote the majority opinion) on providing equal dignity. In essence, they found that the core aspects of marriage were upheld in gay marriages and as such they were due equal protection.
Your question — whose dignity falls under the scope of consideration — is the tricky one here. This is malleable and in the US Constitution is reinterpreted as views change. The majority's view is that, as we have seen states experiment with gay marriage and civil unions, we have found the arguments against them to be untenable. We've never defined marriage as being about procreation (e.g. if a man and a post-menopausal woman want to marry that's never been an issue) and we hold it as a form of social cohesion (which applies in LBGT unions, as seen in state who have allowed them.)
Why not siblings? This has a genetic argument against it that was not addressed here. Why not 12 year olds? We don't see their union as a part of the social construct. Again, this decision isn't about tearing down the definition of marriage. It upholds the definition of marriage and says that it applies to same sex couples.
> This is malleable and in the US Constitution is reinterpreted as views change.
This is the rub. What is the point of writing down laws and constitutions if the words don't stay put? If their meanings are ephemeral and open to interpretation, we are governed by men (executives, bureaucrats, judges, prosecutors, police) and not by laws.
There are states out there that make no pretension and are ruled by fiat. The U.S., in contrast, is supposed to be a nation of laws. The laws being checks against individuals and special interests. The legitimacy of the U.S. hinges on it sticking to the rules of governance that were set in place and upheld over the years.
Guess you oppose all those constitutional amendments then too?
The Bill of Rights even expressly notes that the rights enumerated do not cover all rights and cannot be expected to cover all rights, and that those rights not enumerated are not meant to somehow be lesser -
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Exactly the opposite. Amendments are the correct way to change the Constitution.
Randomly deciding, "oh, we'll just reinterpret the existing language to mean something totally different, and is cool because times have changed..." is a totally different ballgame.
That sort of thinking violates the legitimacy of our legal system at the basest level. If words in a law, or in the Constitution don't mean anything and meanings can be changed on a whim, there is no solid ground for anything.
Except this is the norm. Is electronic communications protected? Freedom of the Press cover that? Who controls currency vs coin? What about bitcoin? Interpretation is going on all the time.
There's nothing wrong with interpretation, as long as that interpretation doesn't change the original intent. Obviously freedom of the press covers communications in general, already covered several types of communication originally, and would cover electronic communications and any other form of communication we invent.
If you want to change the original intent, though, that's an amendment. That's why prohibition required an amendment, for example. The court couldn't (as they disingenuously do today) just say, "well, over here the Constitution says that the feds have the power to regulate interstate commerce. So sure, prohibition is fine because commerce."
That's a stretch by any interpretation. Its obvious to me that an electronic amendment is overdue. Can we come up with a test for 'amendment required'? It can't be about what's 'obvious' to someone.
And therein lies the rub. Interpretation vs. legislating from the bench is in the eye of the beholder.
Doesn't matter anymore, though -- the majority of people, whether liberal or conservative, don't really care about freedom or laws anymore, or what the Constitution actually says. They just want the government and the courts to decide their way, regardless of whether it is good jurisprudence.
Constitutional amendments are certainly constitutional.
The judicial system discovering new rights is not.
And that clause of the Constitution certainly was not used when the question of mandatory health insurance came before the court. I would actually like that policy if it were consistently applied. Instead it is applied when it is the means to meet the desired ends. And that means we are a nation ruled by men, not by laws.
You asked, why this minority? Because two consenting adults want to get married, that's why. Not two children, but two adult Americans want to get married and have it recognized around the United States, not just a few states.
States screwed up when they took the civil part of marriage and associated it with the ceremonial part in a church.
>States screwed up when they took the civil part of marriage and associated it with the ceremonial part in a church.
Couldn't agree more. To me the correct answer is that the government should grant civil unions, and not recognize marriages in any legal way. Marriage should be between people and their religious institution. Want to get married? Great! Go to your church and sign your civil union documentation when you're done with the ceremony to get all the governmental perks. If your church doesn't want to allow homosexual marriage? Fine! Homosexuals can find an accepting congregation and get married there. Or they're non-religious, and can just go get a civil union without the marriage.
The real problem with the gay marriage debate hasn't been the inequality, or the bigotry, it's the fact that a religious institution got mixed up with a legal institution. So instead of teasing them apart, we've decided that the legal definition now partially defines the religious institution. That is why some people are going to continue to be somewhat justifiably angry about this. If we just gave them separate definitions, it would let people self-select private institutions whose definition they agreed with.
While I generally agree that it is annoying that religion and government got mixed up here, I've found that in a significant portion of cases, "marriage is religious, don't redefine it" is just a convenient cover for animus. Out of which things like North Carolina's 2012 state constitutional amendment came.
Why two? Civil marriage should be a normal contract between n entities that are allowed to engage in contracts. It seems extremely inelegant to have arbitrary restrictions on it.
I think it's pretty straightforward to come up with reasons why it's important to limit marriage to as few people as possible. One strong one being that it could be very bad for society to allow wealthy men (and women, though I think it would be less common) to marry a large number of women, especially due to the negative effect such a situation would have on lower class men.
But it's not limiting that. People are already free to do so and some religious or philosophies encourage or make it highly desirable. They just cannot be legally recognized which is pointlessly discriminatory.
> States screwed up when they took the civil part of marriage and associated it with the ceremonial part in a church.
In England that was because the church - specifically the Anglican church - wanted to gain religious power over marriage as a mechanism to make it harder for Anglicans to marry into other faiths. So I'm not really sympathetic to churches in common law countries crying about this one.
Siblings/cousins creep most people out due to inbreeding, but honestly I don't really see a problem with it if they promise to not have kids. (I'm an only child though, so I don't have any perspective)
Polygamy also seems like it should be legal to me, as long as everyone is a fully consenting adult.
Basically I just think the government should just stay out of peoples lives as much as possible.
I think they should stay out of marriage since it's almost entirely a religious construct. Instead, they can be in the business of civil partnerships, which dictate those things required by law - HIPPA/healthcare rights, inheritances, child custody, death rights, and so on, and so forth.
Then "marriage" can be defined by your religion. My wife and I were not married in a Catholic Church. Therefore, in the eyes of the church, we're not married. That's fine with me. In the same vein, I'm friends with a gay couple who's synagogue married them before their state legalized gay marriage. In their eyes, they were married, whether or not the state acknowledge inheritance/HIPPA rights.
It seems relatively logical, but it's never come up in conversation. Let the state make rules around civil partnerships, and let religions deal with marriage - which, basically, says that if you say you're married, then cool - you're married.
>Let the state make rules around civil partnerships, and let religions deal with marriage
That's exactly how it works now. One is called civil marriage and one is called religious marriage. The church sets their own rules and the government sets theirs. You can be in one, the other, or both at the same time.
Civil marriage is a legal contract, religious marriage is decided by the church and it is whatever the church says it is. The government lets clergy also officiate civil marriage but it doesn't have to. It does because it makes sense. You wouldn't have to need a civil official and a religious official at your wedding. You wouldn't have to go through two ceremonies, one at the church and one at city hall.
Don't put too much thought in the fact that both contain the word "marriage" in them.
Goodrich vs. Dept of Health (MASS.) (emphasis mine):
"Marriage is a vital social institution. The exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to our society.... The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry. We conclude that it may not. The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens.... the arguments made... failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples."
I've long thought that a solution to the "gay marriage" "problem" would be for states to get out of the marriage business and just allow one adult to specify another adult as the legal party for all the things that a spouse gets under marriage.
Then there's no debate in terms of the state because the state doesn't define marriage at all! But that just exposes how some people WANT marriage to be man+woman to enforce their belief system.
I've heard this argument before, but I'm not sure I understand how that is different from what's going on now. It seems to just be semantics. The Catholic Church is still free to only marry Catholics and ignore the rest. That doesn't change. And people are still able to go through religious marriage ceremonies without bothering to be recognized by the state.
Personally I was married in a religious ceremony and then had to submit paperwork for it to be recognized civilly.
> The Catholic Church is still free to only marry Catholics and ignore the rest. That doesn't change.
The next round of lawsuits will see if you're right. There is some real risk you are mistaken. If not with regard to the Catholic Church, then with regard to private organizations recognizing or participating in marriage ceremonies.
>12 year olds [...] are not oppressed minorities facing a long history of brutal discrimination.
No, they absolutely are -- not in a way that really bears on whether they should get married, but seriously, have you been 12? Ever spent five minutes inside a Jr. High?
Being 12 is not a permanent condition, while generally race and sexuality are. While being 12 is not a choice - it's forced on most people - they also generally stop being 12, usually within a year or so of the condition.
> The US leads Western nations in child homicide rates, while millions of children around the world are threatened with physical, sexual and emotional abuse, including murder, rape and bullying, a new UNICEF report revealed
Just a random thought but you could argue age discrimination is still equal because except for death, everyone goes through the same ages. In other words, when you're 25 you'll be treated by the law the same as other 25yr olds.
Brothers and sisters does seems to me like it's just people think of it as icky. Some cultures encourage marrying first cousins and the genetic risks are minimal. And even people that aren't related can and are tested for whether their genes combined will likely lead to genetic issues with their children. In other words the genetic risk is mostly not a valid excuse to ban siblings from marrying anymore than not being able to create children is for same sex couples.
The risks are not "minimal". There are increased risks in cultures where first cousins marry. Part of that is that married first cousins have an increased risk of having children with birth defects. And part of it is that people are more related than they think if everyone is marrying a first cousin.
While I don't necessarily agree with, say, sibling marriage, the argument about birth defects is not very compelling. This ruling pointed out at one point that an ability to procreate is not a requirement for marriage in any state. Further, genetic testing to avoid birth defects is not a prerequisite for marriage, so why would sibling marriage be precluded to avoid birth defects. Should society therefore only allow siblings or cousins of the same sex to marry because they can't procreate?
Thank you for pointing that out but I still maintain it's irrelevant. People that will pass on genetic issues to their children are not banned from getting married nor banned from having children. On top of which as science progresses it's likely all those issues can be fixed. In other words, it's not a valid reason to deny siblings getting married.
Sometimes the general opinion (let's say > 55% of the population) changes so quickly that it would take 10-20 years to wait for the parliament and senate to be sufficiently repopulated by representatives from the new generation, with more modern opinions.
In these cases you can reach a situation where the democratically elected representatives will hold an opinion that is more conservative than that of the general population.
In this case, whatever shortcut mechanism can be exploited to bring the legislation closer to the general opinion, it will be cheered by the general population.
The decision was not made through the normal channels, but people are happy nevertheless.
> Why not allow 12 year olds to marry as a consititutional right?
12 year olds can't provide informed consent.
> Why not allow brothers and sisters to marry?
I actually don't object to this, so long as they're not permitted to have biological children. The primary reason why incest is bad is because of the genetic damage caused by it; eliminate that problem (by preventing the possibility of said damage), and there's not really that much of a reason left to forbid it (other than a potential "ick" factor, but that's mostly subjective).
In the United States, the government -- at all levels, federal, state and local -- is allowed to discriminate against or in favor of particular groups of people. The government just has to show that the discrimination serves some permitted purpose, and depending on the groups involved may have to clear a high bar of proof that the alleged purpose is the real purpose (since some groups have historically been discriminated against for bad reasons, we have higher suspicion of new discrimination against those groups).
For example, state governments can require a person to have a driver's license before driving a car. This discriminates against people who don't have a license, but the support for it is rooted in a good reason: safety. Requiring people to pass a brief examination to show their knowledge of traffic laws and possession of the basic skills of driving is quite reasonable, and so driver's licenses are a permitted form of discrimination.
Similarly, people under a certain age typically cannot enter into contracts on their own. The support for this comes from the fact that younger people are less likely to be mature and knowledgeable and understand what they're getting into, so restricting it to a particular age (typically, the age at which one graduates from the public school system) and requiring the advice and consent of someone over that age for a minor to enter a contract is reasonable, and is permitted.
Over the past few years we've seen multiple alleged justifications for banning same-sex marriage asserted in courts, and each time they've been knocked down as nonsensical or even as contradicting the other policies of the state which advanced those arguments.
For example, we've seen an argument advanced that states have an interest in ensuring the production and safe rearing of future generations, that marriage is provided for the sole purpose of advancing that interest, and so a same-sex couple (who cannot procreate) should be excluded from marriage. Except this argument falls apart if you so much as breathe lightly on it: states which make this argument do not require any sort of commitment to have children from a heterosexual couple, and in fact will grant marriage licenses to couples known to be sterile, and many of them allow same-sex couples to adopt and raise children.
The result of this process has been that there really is no alleged justification or purpose left, other than "we don't like same-sex couples, largely for religious reasons". And that's not something our country allows as a justification for a law ("we don't like that kind of people" stopped being allowed about a half-century ago).
Because they brought the case to the supreme court. If 12 year olds and incestual couples want the right to marriage then they need to also bring that case to the supreme court. They didn't just decide to make this decision, they are judging a case that was brought to the court.
If that's how the equal protection clause works, why was it necessary to pass the Civil Rights Act as a law or Woman's Sufferage as an amendment? Based on the state of civil rights at the time, it's clear that the founding fathers did not intend the constitution to provide universal equality for all peoples.
I agree with this decision, but not because I think it's justifiable under the constitution. I see it as acceptable because I believe one of the unspoken roles of the Supreme Court is to be a group of 9 people who are a bit more wise than the average American.
Even though Scalia probably agrees with your unspoken rule, he doesn't reach the same conclusion because of it:
(Scalia, I): "...Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers, who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single South-westerner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans19), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation..."
There's an often referenced and interesting argument from the TV show The West Wing where a republican woman argues against the ERA (Equal Rights Amendment) based on the same question - passing an amendment saying women are equal somehow implies they weren't under Article 14 of the Constitution.
> the founding fathers did not intend the constitution to provide universal equality for all peoples
In fact, they agreed that some people should be slaves to others and only landholding white males should vote. But the founding fathers intentions are not decisive or necessarily even important (and relying on grasping their intentions is, as I understand it, is not a legal principle but just one philosophy of many).
To emphasize the difference in perspectives: This is not a religion; the Founding Fathers are not gods, and they did not hand down scripture to us. They were the citizens of their day, they did what they did (I think they did very well), and we are the citizens of our day, to do what we think best. That's the essence of democracy; the Constitution and country are now ours, not the property or responsibility of 18th century or 19th century or any other ancestors; they belong to the people, to make of it what we will.
If you think about it, it's a very conservative and pessmistic idea to say we must appeal to these ancient authorities to decide things for us, that we can't do it ourselves just as well (and if you read about the people and politics of that era, you will see they were no different than us). A more optimistic and I think democratic point of view is to say (it's a well-known idea but I don't know who I'm quoting ...), "We are the ones we've been waiting for'.
The point is not that the Founding Fathers were mortal incarnations of the divine. The point is that the law has to have a meaning or else it is literally meaningless. If we use the law like tea leaves and just read in whatever meaning we want, whether or not it's what the law is actually supposed to mean, that puts us in a precarious position. Maybe today "equal protection" means that gays should be allowed to marry, but tomorrow it means that everyone should be equally protected from being hit on by gays. That's not a good footing for our society to be on.
> That's not a good footing for our society to be on.
That's actually very good footing for our society to be on. It means that the law can change as society changes over time. Future societies will not be bound to outdated precepts established by people who have never lived in their world.
We tend to think of laws as these unchanging concepts, perfectly created, but they are not. Ultimately laws are created by mankind and interpreted by the same. We may believe that they derive from a higher power, but we have no absolute proof of that higher power and thus, the law must begin and end with Man.
If some deity is willing to descend to the mortal plane and lay down The Law, then he/she or it welcome to do so. Until then, we are stuck with the best that we ourselves can do.
> It's the job of the legislature to change the laws, not the courts.
Not according to our system of laws.
The courts are empowered to change laws that conflict with others, particularly with laws superior to the one in question; in this case the laws in the Constitution overrule state laws.
Also, the courts are responsible for interpreting laws, and therefore can change them in that way too.
> That's the essence of democracy; the Constitution and country are now ours
But isn’t that exactly the point? As I understand the various previous posters, the main argument is not whether the constitution should ensure a right to marry for everyone, but whether it does give out this right.
Further (again my interpretation), it seems that the issue is that the previous interpretation of the constitution did not allow for homosexuals to marry – otherwise it would have been allowed before. ‘The People’ now want to give out this right, but: should it be granted by a court deciding “This sentence, which previously was interpreted as X, now means Y” or should it be done by a change of the actual constitution?
Additionally, does this ruling imply that homosexuals were always allowed to marry (i.e. the constitution/law always allowed it, it was just misinterpreted by the courts) or does it mean that the law has now suddenly changed? Then, should such a change of law be implemented by a court or via the usual democratic process?
(I don’t understand the common law system and the US enough to give any answers to these questions, but they do seem interesting.)
Can you specify what part of the constitution is being violated here? There are amendments that protect race, color, gender, etc. Protection based on sexual orientation doesn't seem to be covered, at least not specifically.
In my mind, the correct solution to this issue should have been legislative (that is, add an amendment to the constitution), not judicial.
This really has nothing to do with sexual orientation.
It's not gay marriage, it's same-sex marriage. This is a subtle but extremely important distinction.
Gay people have always been allowed to marry. They haven't been allowed to marry the people they want, but a gay man was allowed to marry a gay woman in every state in the union. Similarly, straight people were not allowed to marry other straight people of the same sex.
Marriage is just a matter of straight-up sex discrimination. Bob can marry Jane but Susan can't, because Bob is a man and Susan is a woman. That's clearly discrimination based purely on the sex of the participants (and not the sexual orientation, which is merely the thing that might cause Susan to want to do this, but not relevant to whether it's allowed) and IMO a clear violation of the equal protection clause.
Laws are supposed to be sex blind. If a man can legally do something, a woman should be able to legally do it as well. That was not the case with marriage before this decision.
I should have phrased my earlier comment more specific to same-sex marriage, that's true. I don't think your second argument that marriage is sex discrimination is valid though. As you point out, both men and women have been allowed to enter into non same-sex marriages, regardless of their orientation or gender.
What's in question here is whether its discriminatory to not allow same-sex marriages to occur and whether states should be able to determine what marriage means and restrict it accordingly. Marriage has traditionally been between a man and a woman and certainly wasn't intended to be part of the 14th amendment when it was added to the constitution in 1868.
To add it more than 100 years later seems like a case of the judicial branch legislating and adding to the law, more than interpreting existing law in the context and intent of which it was passed.
Because the institution, historically speaking, has been between people of different genders. It is only recently that people have even considered allowing same-sex marriages. It certainly wasn't considered or was part of the intent of the 14th amendment, when it was added to the constitution.
If you want to add a law to consider prohibiting same-sex marriage as discriminatory, then go through the process to add a law through the legislative process. Changing the meaning and intent of the current laws through the judicial process seems like the wrong way to go about it. It just isn't currently part of the constitution.
Why does the history of the thing have any bearing on whether something is sex discrimination?
It seems quite obvious to me: if a man is legally permitted to do X, and a woman is not, purely because she's a woman, then that's sex discrimination. It doesn't matter what X is or how much history there is around it.
If you want to argue that the 14th Amendment was not intended to prevent sex discrimination in marriage, I'm right there with you. But I don't see how you can argue that requiring marriage to be one man and one woman is not sex discrimination.
I mostly meant within the context of the current law and the historical understanding that marriage was only between a man and a woman when the 14th amendment was added. In my opinion, the constitution, as it currently stands, doesn't consider prohibiting same-sex marriage to be gender-based discrimination.
Seems to me that the question of whether denying same-sex marriage is sex discrimination lies outside of law, and the law's purpose is simply to discuss which forms of discrimination are legal. I would say that at the time the 14th Amendment was written, it would have assumed that sex discrimination in the context of who can get married was allowed, not that it didn't consider it to be discrimination in the first place. But that's really just splitting hairs.
I think the important bits are: the 14th Amendment wouldn't have been considered to allow this when it was written, but now it is.
That is correct. Change in attitude can be reflected by due legislative process, but some of the liberal victories always believed in Fiat, either from the POTUS or SCOTUS.
Rights of a minority should not be left to the democratic process.
If the constitution and the its amendments, which protect minority rights (and people's rights in general) aren't the result of a democratic legislative process, what are they a result of?
The question is whether the current constitutional legislation provides these minority rights. The court's role is to interpret existing laws, not add to them because it thinks its the right thing to do. That's the legislature's role.
Sorry, but as a lawyer totally in favor of gay marriage, Roberts, at least, is completely right on the legal theory.
There has been basically nothing, in the history of our country, considered more of a state right than defining marriage.
The supreme court is not a ruling council. Our constitution is about freedom from government intervention, not guaranteed government benefits.
The debates over everything in the past that led to amendments looked roughly the same as the debate over same sex marriage.
For example, people beat each other on the floor of the senate chamber over slavery. The only difference to this debate is that a court ended it by deciding to change the constitution.
This is not how the process is supposed to work. The fact that the majority of the US may be tired of a broken political system does not change this.
>The debates over everything in the past that led to amendments looked roughly the same as the debate over same sex marriage. For example, people beat each other on the floor of the senate chamber over slavery. The only difference to this debate is that a court ended it by deciding to change the constitution.
So you are saying that every social issue must end with a constitutional amendment? The 14th amendment is already there. Why must we repeat the mistakes of the past every time a new issue comes along? Are you suggesting we should go to war to settle same sex marriage?
>This is not how the process is supposed to work.
You have not established this conclusion with anything you said. Nothing in this comment strikes me as from a "lawyer" but what do I know, I'm just an astronaut doctor lawyer in space.
I'm aware of loving, which said nothing different?
Loving basically said the same thing i did - they need a legitimate state interest. Race based discrimination is not a legitimate state interest. Therefore, Loving falls.
That is sane legal theory. But it doesn't change this case?
"So you are saying that every social issue must end with a constitutional amendment? The 14th amendment is already there. Why must we repeat the mistakes of the past every time a new issue comes along? Are you suggesting we should go to war to settle same sex marriage?"
So what is your view on the 14th amendment. What do you think equal protection means?
Because what you've said here essentially implies you think the 14th amendment swallows the rest of the constitution, when instead, the 14th amendment has very specific application.
"You have not established this conclusion with anything you said. Nothing in this comment strikes me as from a "lawyer" but what do I know, I'm just an astronaut doctor lawyer in space."
You haven't actually refuted any point i've made.
If you are arguing i am not a lawyer, that's fairly easy to verify.
Past that, why actually listen to a lawyer, when you can cite that great legal authority, wikipedia.
If you want to make a legal argument, make one. Simply saying "Loving", does not work, because Loving is different.
> I'm aware of loving, which said nothing different? Loving basically said the same thing i did - they need a legitimate state interest. Race based discrimination is not a legitimate state interest. Therefore, this falls.
How is sex-based discrimination in marriage a legitimate state interest but not race-based discrimination in marriage? I'm having trouble seeing how Loving — which overrode states' control over marriage when it was unnecessarily discriminatory — can be a good ruling while Obergefell is a bad ruling because it overrode states' control over marriage when it was unnecessarily discriminatory.
Disclaimers: I'm not a lawyer, and I am 100% in favor of gay marriage.
I read Roberts' dissenting opinion pretty closely, and he discusses Loving several times. His argument doesn't read like a states' right argument at all.
His basic point is that, for better or for worse, the definition of marriage has always been a union between a man and a woman, and that the laws were written with this interpretation in mind. (I agree there, as he provides some good primary sources, and Kennedy's majority opinion acknowledges this fact as well.) We'll call this opposite-sex definition "Marriage" with a capital "M". Roberts also demonstrates that Marriage is a guaranteed right. (The majority agrees there, too.)
In the cases in question, states sought to restrict some people from Marriage, e.g. interracial couples, convicts, etc. These decisions were struck down by the court, because they violated the right to Marriage as it was guaranteed.
The gay marriage issue, however, is different. It does not seek to prevent restrictions on Marriage, but to redefine it to include more people (specifically, opposite genders). Roberts argues that creating rights is not the responsibility of the court, but should instead be handled by the legislative branch.
The majority argues that, even though past litigation and legislation only protected opposite-sex Marriage with a capital "M", it is okay to ignore their intentions if they are harmful or misguided. I think the dissenting justices were wary of doing that, because it goes beyond interpreting the law and wades into writing the law. It's not up to the court to determine what the law should be, only to determine what it is. Otherwise, they're usurping the power of the legislative branch, and thus of we, the people, who elect them.
This is easy:
Race based discrimination is held to a heightened standard.
Sex based discrimination is also.
However, the majority in this case did not hold that this was sex based discrimination (despite arguments that it was).
That would, in fact, have been valid legal reasoning. Holding that it is sex based discrimination and subject to heightened scrutiny under equal protection would be perfectly reasonable.
Instead, they said that the equal protection clause and the substantive due process clause combine in a magical way to give a new right.
>Applying these established tenets, the Court has long
held the right to marry is protected by the Constitution.
In
Loving
v.
Virginia
, 388 U. S. 1, 12 (1967), which invali
-
dated bans on interracial unions, a unanimous Court held
marriage is “one of the vital personal rights essential to
the orderly pursuit of happiness by free men.” The Court
reaffirmed that holding in
Zablocki
v.
Redhail
, 434 U. S.
374, 384 (1978), which held the right to marry was bur
-
dened by a law prohibiting fathers who were behind on
child support from marrying. The Court again applied
this principle in
Turner
v.
Safley
, 482 U. S. 78, 95 (1987),
which held the right to marry was abridged by regulations
limiting the privilege of prison inmates to marry. Over
time and in other contexts, th
e Court has reiterated that
the right to marry is fundamental under the Due Process
Clause. See,
e.g., M. L. B.
v.
S. L. J.
, 519 U. S. 102, 116
(1996);
Cleveland Bd. of Ed.
v.
LaFleur
, 414 U. S. 632,
639–640 (1974);
Griswold
,
supra
, at 486;
Skinner
v.
Okla
-
homa ex rel. Williamson
, 316 U. S. 535, 541 (1942);
Meyer
v.
Nebraska
, 262 U. S. 390, 399 (1923).
>A first premise of the Court’s relevant precedents is that
the right to personal choice
regarding marriage is inherent
in the concept of individual autonomy. This abiding con
-
nection between marriage and liberty is why
Loving
inval
-
idated interracial marriage bans under the Due Process
Clause. See 388 U. S., at 12; see also
Zablocki
,
supra,
at
384 (observing
Loving
held “the right to marry is of fun
-
damental importance for all individuals”). Like choices
concerning contraception, family relationships, procrea
-
tion, and childrearing, all of which are protected by the
Constitution, decisions concerning marriage are among
the most intimate that an individual can make. See
Law
-
rence
,
supra
, at 574.
>ee App. to Brief for Appellant in
Reed
v.
Reed
, O. T.
1971, No. 70–4, pp. 69–88 (an extensive reference to laws
extant as of 1971 treating women as unequal to men in
marriage). These classifications denied the equal dignity
of men and women. One State’s law, for example, pro-
vided in 1971 that “the husband is the head of the family
and the wife is subject to him; her legal civil existence is
merged in the husband, except so far as the law recognizes
her separately, either for he
r own protection, or for her
benefit.” Ga. Code Ann. §53–501 (1935). Responding to a
new awareness, the Court invoked equal protection prin
-
ciples to invalidate laws imposing sex-based inequality on
marriage. See,
e.g., Kirchberg
v.
Feenstra
, 450 U. S. 455
(1981);
Wengler
v.
Druggists Mut. Ins. Co.
, 446 U. S. 142
(1980);
Califano
v.
Westcott
, 443 U. S. 76 (1979);
Orr
v.
Orr
, 440 U. S. 268 (1979);
Califano
v.
Goldfarb
, 430 U. S.
199 (1977) (plurality opinion);
Weinberger
v.
Wiesenfeld
,
420 U. S. 636 (1975);
Frontiero
v.
Richardson
, 411 U. S.
677 (1973). Like
Loving
and
Zablocki
, these precedents
show the Equal Protection Clause can help to identify
and correct inequalities in the institution of marriage,
vindicating precepts of liberty and equality under the
Constitution.
These are due process clause arguments, not equal protection clause arguments.
The majority in fact, found not that either of these provide a sufficient basis, but that they magically combine in some way.
If they had just said "this is sex based discrimination, subject to a heightened standard of equal protection", this would have been sound legal reasoning.
But they didn't.
>In
Lawrence
the Court acknowledged the interlocking
nature of these constitutional safeguards in the context of
the legal treatment of gays and lesbians. See 539 U. S., at
575.
Although
Lawrence
elaborated its holding under the
Due Process Clause, it acknow
ledged, and sought to rem-
edy, the continuing inequality that resulted from laws
making intimacy in the lives of gays and lesbians a crime
against the State. See
ibid.
Lawrence
therefore drew
upon principles of liberty and equality to define and pro
-
tect the rights of gays and lesbians, holding the State
“cannot demean their existence or control their destiny by
making their private sexual conduct a crime.”
Id.
, at 578.
This dynamic also applies to same-sex marriage. It is
now clear that the challenged laws burden the liberty of
same-sex couples, and it must be further acknowledged
that they abridge central precepts of equality. Here the
marriage laws enforced by the respondents are in essence
unequal: same-sex couples are denied all the benefits
afforded to opposite-sex couples and are barred from exer
-
cising a fundamental right. Especially against a long
history of disapproval of their relationships, this denial to
same-sex couples of the right to marry works a grave and
continuing harm. The imposition of this disability on gays
and lesbians serves to disrespect and subordinate them.
And the Equal Protection Clause, like the Due Process
Clause, prohibits this unjustified infringement of the
fundamental right to marry. See,
e.g.,
Zablocki
,
supra
, at
383–388;
Skinner
, 316 U. S., at 541
That last sentence is the key:
>And the Equal Protection Clause, like the Due Process
Clause, prohibits this unjustified infringement of the
fundamental right to marry.
They are not "magically" combining anything. Disallowing gays to marry is a violation of BOTH the Equal Protection Clause and the Due Process Clause.
This is where they simply assert there is an equal protection clause violation based on the fact that there is a substantive due process violation. It's just assertion. There is no precedent they are drawing on, and in fact, they acknowledge Lawrence was not an equal protection clause win. In fact, it was an equal protection clause loss, as i cited.
They point out a bunch of things about substantive due process (not equal protection)
Then, they simply assert ">And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry."
This is not a legal argument, it's, as scalia would say, jiggery puffery. It's not a citation of precedent. It's not a logical argumentation from the standards applied to equal protection claims. You can see there are zero tests being applied here. It is simply bare assertion.
Basically, nowhere in this paragraph, have they explained how it is an equal protection clause violation for legal reasons.
They just assert it exists.
There are in fact, reasonable arguments and conclusions to be made on either side of this particular legal battle. The majority made none of them :)
(As i pointed out, they could have held this was sex based discrimination subject to heightened scrutiny under the EPC, and disallow it there)
To be honest, if we are going to play armchair lawyer on hacker news, suggest you read these, and the decisions they refer to, with a really critical eye (to both sides). I suggest you take the time to look at what law schools outlines teach (it's a fine source if you want crib notes) about the equal protection clause.
With no disrespect meant, I simply have no remaining urge to try to explain to a large number of folks who confuse pretty basic constitutional law concepts, but want to argue with each other, what those concepts are. Not because i find it beneath me, but because it becomes exhausting :) Things like the substantive due process clause, the equal protection clause, etc, have a lot of precedent on them, and are very well studied. I would strongly suggest you take a look.
As a lawyer, could you explain how denying over 1,000 federal marriage benefits to same-sex couples would be offering them equal protection under the law?
First, this is not what laws were challenged.
The laws that were challenged are very specific.
As roberts says, "petitioners’ lawsuits target the laws defining marriage generally rather than those allocating benefits specifically"
Had they challenged benefits laws, that would change the equal protection analysis significantly.
But in this lawsuit, given what they've actually challenged, the normal precedent would be to apply the rational basis test, and nothing stronger.
Again, i'll quote roberts, who quotes lawrence:
"In any event, the marriage laws at issue here do not violate the Equal Protection Clause, because distinguishing between
opposite-sex and same-sex couples is rationally related to
the States’ “legitimate state interest” in “preserving the
traditional institution of marriage.”" Lawrence, 539 U. S.,
at 585.
(Now, you could argue this isn't a legitimate state interest, but that's a pretty resolved question at this point, and would require overruling about 200 years of precedent on the issue :P)
The majority doesn't even bother to argue otherwise.
Second, the vast majority of the opinion does not rest on any equal protection claim, and not even the majority takes that argument seriously on these facts given the above.
In fact, the majority doesn't even explain how their argument that this is correct works. They don't even spend a paragraph explaining it, just make a conclusory statement.
So to answer your question, i don't claim what you are stating would in fact, be offering equal protection, but will point out
A. This isn't actually the case before the court
B. Resolving that case does not require declaring states must issue same sex marriage licenses. It would probably require that those validly marriage be given the same benefits.
SCOTUS is supposed to go out of it's way to not resolve questions not before it, and when they do resolve questions, they generally resolve them in the least sweeping way possible.
All of the precedent on the issue of "marriage" was made with the understanding that marriage meant a union between a man and a woman. Both the majority and dissenting opinions in today's decision acknowledged this fact.
Loving v. Virginia was struck down because it sought to arbitrarily hinder this right. However, gay marriage is a very different issue, because it seeks to expand the right to more people.
Well, as the history of this country has been one of expanding the scope of rights to encompass more people, rather than one of limiting rights to only apply to folks that think and act like the majority, I'm for it. The only time we tried to limit rights with a Constitutional amendment (prohibition), things didn't go so well.
I would also take issue with your framing of this case. I view gender as just as arbitrary a hindrance as race, especially given that the "Biblical definition of marriage" also dictates things like how one should treat their sex slaves. It's also worth noting that it was religious conservatives that were also raging against the decision in Loving v. Virginia, because it violated "traditional" notions of marriage.
So, what's the difference between an "arbitrary hindrance" and an "expansion of rights"? Who gets to decide? Which one is allowed, in your view?
For others who were also interested, the "over 1,000 federal marriage benefits" figure comes from a United States General Accounting Office report to Congress, updated as of 2004.
> Can anybody counter Scalia, and say why the issue of gay marriage couldn't wait to be resolved by the states?
For the same reason that slavery couldn't be resolved by the states. For the same reason that racism can't be resolved by the states. Because these things haven't gotten resolved by states. The United States of America, sadly, has a significant minority of people who Just Don't Get It, and there are enough of them that if (when) they congregate they can form majorities in a number of states. And so the federal government needs to step in and dope-slap these people from time to time.
I think that gay marriage should be legal, but I disagree with this. Beware of the fallacy of analogy! There is no economic incentive for a state not to allow gay marriage, there was an economic incentive for states to keep slaves. Also, it wasn't the supreme court that ended up freeing the slaves...
There was no economic incentive to ban interracial marriage either. That didn't stop many states from doing it. And there are economic disincentives to racial discrimination. That didn't stop it from being institutionalized for decades.
And I didn't say the supreme court needs to step in, I said the federal government needs to step in.
I agree with this being a fallacy of analogy, but yours is the wrong point. There is absolutely economic reason to prevent gay marriage - lower taxes for married couples, for one thing.
I'm one of those who I think you would say "Just Don't Get It." Judging from your rhetoric, you clearly don't understand why some people do not think gay marriage is a good thing for the country. I don't think you have earned the right to say we "Just Don't Get It" and need to be "dope-slapped" until you actually get why we disagree with your viewpoint. If you can coherently argue for my position (even though you disagree), and you still don't think I'm being reasonable, then maybe you can use that kind of rhetoric.
> you clearly don't understand why some people do not think gay marriage is a good thing for the country
I've been studying this issue (and writing about it) for twelve years. I doubt very much there is an argument on either side I haven't heard.
But this is a red herring. It doesn't matter whether gay marriage is or is not a good thing for the country. (I think it is, but that's irrelevant too.) What matters is if it's protected by the Constitution.
So here's the test: do you think that states can Constitutionally ban interracial marriage? If so, then we'll just have to agree to disagree. But if not, then I submit that you cannot oppose same-sex marriage without being a hypocrite. There is no argument against gay marriage that cannot be applied just as well to interracial marriage.
If you think there is such an argument, I'm listening.
There is clearly such an argument: "marriage is about biological reproduction."
Of course, consistently applied, that should also argue against marriage of straight couples unable to have children (and probably also all the straight couples uninterested in having children). "No marriage after a hysterectomy" is not a position I've encountered.
No, that argument applies (and was in fact applied) to interracial marriages as well: interracial marriages produce undesirable hybrids which have no racial identity and therefore cannot be integrated into society.
> "No marriage after a hysterectomy" is not a position I've encountered.
Of course you haven't, because no one really takes the reproduction argument seriously. When you dig into it, it's just an obvious smokescreen to cover up the bigotry which is at the heart of all opposition to gay marriage.
If there were an actual argument against gay marriage, any demonstrable harm that comes from it, don't you think that the Right would be shouting it from the rooftops? But they aren't. All they're shouting from the rooftops is how horrible it is to ram social change down people's throats. The fact that this is the best argument they can muster is proof that sometimes you have no choice but to ram social change down people's throats, because some people are simply impervious to reason.
My point was not that it's a great argument, devastating to The Gay Agenda. My point was that it is an argument that does not equally apply to interracial marriage. The fact that someone could stack additional assumptions on top of that argument to get an argument that does apply to interracial marriage is irrelevant - you've built a different argument.
And it's absolutely an argument I have heard. Handwavy denial of its existence to serve your rhetoric is poor form. Addressing the argument directly should be easy enough; I touched on why I think it's a poor argument. I agree that those who make it don't consistently apply it - I raised that point explicitly.
Edited to add: To elaborate on why the argument you mentioned against interracial marriage is a different argument in the sense that is important here, one could easily believe that marriage is about biological reproduction, but believe that interracial "hybrids" are not a bad thing, and thus not be inconsistent in accepting interracial marriage but rejecting gay marriage on these grounds.
> My point was that it is an argument that does not equally apply to interracial marriage
I didn't say it could be applied equally, I said it could be applied just as well. Those don't mean quite the same thing. To review, the argument as you presented it was:
"marriage is about biological reproduction"
That exact argument (in almost those exact words) can be and in fact was applied to interracial marriage back when that was still a thing. Look at e.g.:
The first quote is "They cannot possibly have any progeny, and such a fact sufficiently justifies [not allowing their marriage]." (State v. Jackson. Missouri, 1883)
The rhetorical force of your initial statement came from an accusation that one could not be consistent in denouncing gay marriage while accepting interracial marriage. Once you add additional assumptions, or rely on claims of fact that are true in the one case but false in the other, that does not hold. "Your argument sounds a tiny bit like something that was used to argue for something wrong" is not a good refutation.
As an aside, it looks like the quote is misleadingly truncated in a way that substantively changed the meaning. That said, the full version is still flagrantly factually inaccurate, so the reasoning above remains unchanged.
> people who Just Don't Get It
Ah, but you clearly _do_ "Get It" and should have the right to impose your understanding of the universe on the rest of the country? Who gets to decide who "gets it"? Who decides in which situations those not-getting-it-majority-states should be denied their right to self-government and forced to adopt ways they oppose?
> Who decides in which situations those not-getting-it-majority-states should be denied their right to self-government and forced to adopt ways they oppose?
Ultimately, the Supreme Court, by virtue of the fact that the Union army won the civil war.
If you don't like it, you can always try to get the Fourteenth Amendment repealed. Maybe the Thirteenth too while you're at it. Good luck with that.
So your preference is for fundamental changes to the institution of marriage to be propagated by the force of state power rather than through reason, persuasion, and organic change.
I'm afraid the Union Army wasn't fighting for gay rights, so I don't quite see how that applies. Nor do I see the relevance of your curious implication that because I question the appropriateness of the Supreme Court proclaiming gay marriage by fiat, I must also be interested in bringing back slavery. ("Maybe the Thirteenth too while you're at it.")
> So your preference is for fundamental changes to the institution of marriage to be propagated by the force of state power rather than through reason, persuasion, and organic change.
Of course not. But that is, sadly, not an option. The forces of ignorance and bigotry are too deeply entrenched in the U.S. That is one of the costs of freedom. People are free to be ignorant, and they are free to be bigots. But the government -- neither federal nor state -- does not have that freedom, thank God.
> I'm afraid the Union Army wasn't fighting for gay rights,
No, they were fighting for the union. But then, having won the war and established the nation as a sovereign power, when the fourteenth amendment was duly enacted it became binding on all the states. Sometimes when you fight for things you end up accomplishing more than you set out to do.
> or the same reason that slavery couldn't be resolved by the states. For the same reason that racism can't be resolved by the states. Because these things haven't gotten resolved by states.
I'm not so sure that the states would not have resolved it (Edit: gay marriage, not slavery).
13 years ago, there were 0 US states with legal gay marriage.
6 years ago it was 3.
2 years ago it was 12.
Yesterday, it was 36 states (plus DC, Guam, and a whole bunch of native american tribes). 70% of the US population lived in areas with legal gay marriage.
You might argue that a few states abolished slavery, too, but that was not going to lead to nationwide abolition without war. I think gay marriage would have been difference, because
1. We have much more interstate trade interdependence now, and
2. We have much more personal mobility.
More and more large national companies are including support for same sex couples in their benefits, and when opening new facilities will take into account if the location is friendly to all their employees, including the LGBT ones. I think as soon as one or two of the hold out states lost some big project that would have brought a lot of jobs and money, and the awarding company cited as a reason for picking a neighboring state was that the winning state is more friendly to their LGBT employees, you'd see a lot of the hold out states changing their tune.
> I'm not so sure that the states would not have resolved it [slavery].
Opinions among historians seem to vary, but the impression I've gotten (albeit not with any careful study) has been that the slave states likely would have been extremely slow to abolish slavery, because:
1) the dollar value ascribed to enslaved people represented a huge proportion of the wealth of politically-powerful slave owners; and
2) many non-slave-owning voters in the slave states --- all white males, of course --- aspired to become slave owners and thus tended to sympathize with the interests of slave owners.
Oops. I meant that I'm not sure the state's would not have resolved gay marriage, not that I'm not sure they would not have resolved slavery. I've edited my comment to clarify.
Unfortunately, the southern states were going the opposite direction. There were states that strongly abolished gay marriage. Even after today's ruling, Texas is making passive-aggressive moves to make it difficult by encouraging county employees to use the "personal objection" reason to not issue licenses.
Because even if you eliminate discrimination as one degree of freedom in the legal code, that still leaves a lot of room for experimentation. Some states have legalized marijuana, others haven't. Some states have high taxes. Some states have low taxes. Some states allow self-serve gasoline, others don't. I could go on and on. There's an awful lot of room for legal "biodiversity" left.
Based on this flowery language on the 14th Amendment in the majority opinion, I'm having trouble understanding why the 14th Amendment doesn't make marijuana bans illegal too.
That sounds like an attempt at a constructionist argument. That's not what I'm reading at all in this opinion.
I'm reading about the 14th Amendment being something that develops over time, helping people discover new freedoms, and be the very best they can be. It's fluffy stuff.
Did you read the opinion? Decisions typically contain some rhetorical flair ("fluffy stuff"), but there was plenty of substance to this decision. See e.g. pages 3-5 of the Syllabus. None of this analysis would be relevant to a decision about marijuana, and many of the standards the decision sets forth would fail in the case of marijuana.
Yes, I agree, but the 14th amendment requires some kind of asymmetry in order to have effect. To violate equal-protection, something has to be unequal.
Not sure I get your meaning here. People who break the law are incarcerated more than people who don't break the law. That's not an equal protection violation.
Some states have no taxes. Contrast Washington (state) and Oregon. Oregon has no sales tax, but an income tax. Washington has sales tax, but no income tax.
In Portland (which is right on the Washington-Oregon border), I recall a car with the license plate "TAXFREE," which was ambiguous enough that I couldn't figure out if it was referring to the owner being "tax free" (paying no income tax living in Washington) or that the car was "tax free" (the owner paid no sales tax when purchasing it in Oregon).
You pay the sales tax based on where you live, not where the car is. For small purchases, no one tracks this but for large purchases like cars, you are charged the sales tax based on where you live.
You will notice that the 10th Amendment mentions both states and people, which implies that the people can have rights that the states cannot abridge. The 14th Amendment made this explicit.
No, the beatings will continue for as long as you fail to respect the law. If you want to forbid gay marriage, it's very simple: repeal the fourteenth amendment. (Good luck with that.)
It's like I tell my liberal friends: if you want to regulate guns, it's very simple: repeal the second amendment.
So according to this ruling, the right for two men to marry has been "lurking" in the Constitution since 1868, right? But we just now discovered it? What I mean is that if someone had brought this case before the Supreme Court in 1870, the legally correct decision would have been to allow gay marriage? Things like that make me wonder what other "rights" (scare quotes because they are things that would not be considered rights today) are hidden in the Constitution, that will be discovered 150 years hence but would shock the conscience of nearly everyone alive today.
Alright, I'll bite: Historically, the second Amendment was meant to to refer to guns being allowed inside of a well-regulated militia. This is accomplished by the states' National Guards. It was not intended to mean that each person gets to have a gun.
This, according to America's Constitution: A Biography by Akhail Reed Amar. Great read, it walks the reader in a novel-type way through each part of the Constitution.
But, we've expanded the 'meaning' of the Constitution several times in ways the founders would have never anticipated. This in like with the 'living document' aspect, and a direct result of our veneration of document that is quite short.
> It was not intended to mean that each person gets to have a gun.
Actually, that is exactly what it was intended to mean. And that's exactly what it does mean according to the Supreme Court. The whole point of the second amendment is that The People do not need permission from the government to have arms. (Don't forget, the country was founded on the basis of a violent revolution against the then-exitisting government!) It's unfortunate the that founders confused the issue by putting some of their rationale into the text of the amendment. But the operative language of the amendment is clear: the right of the People to keep and bear arms shall not be infringed. Full stop.
Back then there were technological limits to how much damage one crazy person could do even if they did have a gun (and economic limits too -- guns were expensive. Only the rich could afford them.) It's unfortunate that the founders did not have the prescience to foresee the day when these limits would go away and a single crazy person could do an awful lot of damage. But for better or worse, that's our legacy.
Let's keep in mind that the Supreme Court, though we rely on them to interpret the Constitution, very often does so against what the founders had intended: take the example in my other comment, Heart of Atlanta Motel v. U.S., where the court unanimously decided that the state can force a business to serve black people under the Interstate Commerce Clause. The Supreme Court ruled that the Second Amendment allows people not members of militias to own guns. This was not the intention of the Amendment. My objection to your comment is that it betrays an attitude that whatever we do with the Constitution is what was Meant To Have Been Said, when in fact the Constitution is a living, breathing document that is constantly re-interpreted to meet our current needs.
Also, I do not find your dual argument -- that the Founders made their intention clear and also convoluted their intention -- particularly convincing. The Founders made quite a few mistakes when they drafted the Constitution[0], so their veneration as authors of the document seems quite overblown.
[0] Ackerman, Bruce. "The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy"
I didn't say the founders' intent should be venerated, or even necessarily taken into account. But you made a claim about their intent ("It was not intended to mean that each person gets to have a gun") and I was responding to that.
People can (and do) argue about the founders' intent, and people can and do argue about the consequences of controlling weapons, or failing to do so. But two things are inarguable: 1) the plain text of the amendment, notwithstanding the explanatory preamble, says that "the right of the People to keep and bear arms shall not be infringed", period, end of story. And 2) the currently operative Supreme Court ruling supports #1.
The real problem with this debate is that both sides are hypocritical. The liberals argue that the 2nd amendment doesn't mean what it plainly says, while conservatives argue that it does mean what it says while tacitly conceding that some limits on personal weaponry (like nukes or ground-to-air missiles) are nonetheless necessary and reasonable. The only real disagreement is over where to draw the line. But until everyone agrees that that's what the argument is really about we're not likely to make any progress.
>I didn't say the founders' intent should be venerated, or even necessarily taken into account.
Hm. I'm a little confused. How can you make a claim about what the intention of the clause was ("Actually, that is exactly what it was intended to mean") without claiming that Founder's intent should be taken into account?
Additionally, it's not pertinent to disclude the "explanator preamble" because, as you say, it's explanatory. The clause and the Amendment itself comes before an Amedment that speaks of quartering troops in peace time. It's clear that the writers intended the clause to be read in the context of militas.
"Equally anachronistically, individual rightists read “the people” to mean atomized private persons, each hunting in his own private Idaho, rather than the citizenry acting collectively. But when the original Constitution spoke of “the people” rather than “persons,” the collective connotation was primary. In the Preamble, “the People” ordained and established the Constitution as public citizens meeting together in conventions and acting in concert, not as private individuals pursuing their respective hobbies.”
[..]
“Founding history confirms a republican reading of the Second Amendment, whose framers generally envisioned Minutemen bearing guns, not Daniel Boone gunning bears. When we turn to state constitutions, we consistently find arms-bearing and militia clauses intertwined with rules governing standing armies, troop-quartering, martial law, and civilian supremacy. A similar pattern may be seen in the famous English Bill of Rights of 1689, where language concerning the right to arms immediately followed language condemning unauthorized standing armies in peacetime. Individual-rights advocates cannot explain this clear pattern that has everything to do with the military and nothing to do with hunting. Yet states’ rightists also make a hash of these state constitutional provisions, many of which used language very similar to the Second Amendment to affirm rights against state governments.”
Amar, Akhail-Reed. "America's Consitution: A Biography." 736-737
I'm not making any claim about how the clause "should" be read, only pointing out that the current reading of it was decidedly not the intention of the writers themselves. Further, to pull it out of context and make a claim about its meaning 'full stop' is to ignore the nuance of the document as well what those words would have meant when the document was drafted.
> How can you make a claim about what the intention of the clause was ("Actually, that is exactly what it was intended to mean") without claiming that Founder's intent should be taken into account?
It depends on whether the question on the table is, "What did the founders think?" or "Should what the founders thought carry any weight?" The intent is obviously salient to the first question, not necessarily to the second.
> It's clear that the writers intended the clause to be read in the context of militas.
No, it is manifestly unclear. That is the only reason we're arguing about it, because it's unclear.
It depends on whether the question on the table is, "What did the founders think?" or "Should what the founders thought carry any weight?" The intent is obviously salient to the first question, not necessarily to the second.
The question on the table is "What did the Founders think?" I pretented cited, historical evidence of the context of the clause which make clear what the Founders thought. We're arguing about it because you do not find that evidence compelling, and I'm attempting to tease out where you've gotten your facts about this intent. I'll have to dig up the SCOTUS case for the DC handgun ban being overturned (2007?) to see why Roberts believed in an individual right, or believed that it was to be found in the Founder's intent. You appear to be basing yours on our 2015 grammar rules, which doesn't quite cut it if we're going all way back to 1787. Also, keep it mind it was manifestly clear for years before it was challenged in court :)
That's true, but it doesn't mean what you think it means. In context (both textual and historical) it means "well-functioning", not "constrained." i.e. it means "In order to have a well-function militia, the right of the people to keep and bear arms shall not be infringed." And the Supreme Court has (correctly IMHO) upheld this interpretation.
I'm all for repealing the Second Amendment. I am vehemently opposed to trying to do end-runs around it.
how are the rights of 8 year olds protected that they can't go to a gunshop unattended and buy a gun? or a convicted felon? how can something be a "right" if it's revocable? how is the word "arms" defined? Why can't I purchase a grenade launcher (after all, if you really want to build a "militia" capable of defending against the British re-invading, you're going to need them)? The 2nd amendment in practice is subject to tremendous levels of regulation. The kinds of regulations most Americans want, e.g. simple waiting periods to allow background checks, are a tiny frill of a regulation compared to how heavily regulated "the right to bear arms" already is.
Because the second amendment isn't really taken seriously by anyone, not even the gun nuts. If it were taken seriously, it would become immediately obvious to everyone that it has become horribly dated by the advent of modern weapons technology and it needs to be changed. And then we could have an honest debate about where we ought to draw the line between weapons that people not in the military ought to be allowed to have, because everyone agrees the line needs to be drawn somewhere, even if it's just at WMDs. But no one seems to want to actually have that debate.
Who is waving the democracy flag? Certainly not me. I'm waving the fourteenth-amendment equal-protection flag. The United States isn't a (pure) democracy. Never has been, never will be. Thank goodness.
> Can anybody counter Scalia, and say why the issue of gay marriage couldn't wait to be resolved by the states?
Why should the States have the rights to prevent the exercise of a citizens civil rights granted by the US Constitution?
The Constitiution, and the Bill of Rights explicitly, exists because there are things that are just not left up to 'the majority' to come to a democratic decision over. They are rights that were recognized to be inalienable rights. Time and again, courts have had to step in to once again assert that these rights already belong to all citizens because the States have used the democratic process to trample and curtail them even though the highest law of the land already should have put such questions to rest.
The Courts ruling says this. "the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry." Their dicision is not based on new law, it is simply stating that the US Constitution already recognized these rights.
Letting the States decide is letting the States pick and choose what parts of the Constitution they feel like following.
holy crap! "granted by the US Constitution" - wow, where to begin?
Here, how about this: our 'rights' are not granted by the Constitution, they are emphasized, publicly proclaimed. The Constitution delineates the rights and responsibilities of the GOVERNMENT. Anything granted can be taken away.
Rights that are not backed by Law do not materially exist. That is why the Bill of Rights (and related documents in other countries) had to be written in the first place.
The debate about the Bill of Rights went like this:
For: Let's enumerate some rights, just in case future generations are stupidly literal about things and get confused because it's not all written down for them.
Against: Bad idea! By writing some down, we might create the impression that those are the ONLY rights.
For: Well then we'll make the 10th Amendment a catch-all, so it's crystal clear that rights exist beyond those we've enumerated so far.
------
So did the 10th Amendment work? It seems like probably not, since people so frequently refer to the Bill of Rights as proof that the Constitution "grants" rights--rather than the intended effect, which is that the Bill of Rights limits government power over rights that already (and always) exist.
"The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. "
I can change this paragraph only slightly to come up with an absurdity.
"The fundamental right to vote does not include a right to make a State change its definition of suffrage. And a State’s decision to maintain the meaning of suffrage (to be those related by blood to the historically dominant culture taking part in the political process) that has persisted in every culture throughout human history can hardly be called irrational."
States are not free to define away your rights, it's that simple.
Scalia says striking down campaign finance laws passed by congress and supported by the people was vital but striking down discriminatory marriage laws is extreme judicial overreach. There's no principle there, it's just the politically expedient argument for his ideological battles.
It's surprising that a person with such a strong bias is part of supreme court panel. I'm not saying all judges must be atheists but are people ok with a fundamentalists types from any religion in the supreme court panels?
Scalia is a devout traditionalist Catholic, and his son, Paul, is a Catholic priest.[109] Uncomfortable with the changes brought about following Vatican II, Scalia regularly attends the Tridentine Latin Mass in both Chicago and Washington, and has driven long distances to parishes that he felt were more in accord with his beliefs.[110] In a 2013 interview with Jennifer Senior for New York magazine, Scalia was asked if his beliefs extended to the Devil, Scalia stated, "Of course! Yeah, he's a real person. Hey, c'mon, that's standard Catholic doctrine! Every Catholic believes that". When asked if he had seen recent evidence of the Devil, Scalia replied, "You know, it is curious. In the Gospels, the Devil is doing all sorts of things. He's making pigs run off cliffs, he's possessing people and whatnot … What he’s doing now is getting people not to believe in him or in God. He’s much more successful that way".[111] In another 2013 interview, Scalia stated that "In order for capitalism to work, in order for it to produce a good and stable society, traditional Christian virtues are essential".[112]
In 2006, Scalia, approached by a reporter upon leaving church, was asked if being a traditionalist Catholic had caused problems for him. He responded by asking, "You know what I say to those people?", and with a gesture, cupping his hand under his chin and flicking his fingers out. The gesture, which was captured by a photographer, was initially reported by the Boston Herald as obscene.
Lets be open-minded, and allow religious people to perform their public duties without consciously projecting their religion on everybody else. Read Jimmy Carter on the subject. He was as devout as they come, but understood the separation of his own beliefs from his public trust.
I believe the issue is that by passing a law prohibiting granting a marriage license to a same-sex couple, a State is violating that couple's Fourteenth Amendment right to life, liberty, and equal protection, among other things.
I will admit that there were a lot of high-soaring words that might have covered up the legal basis, but to me, the legal component of the ruling was simply:
1) The court finds that marriage is an inherent part of life and liberty (arguably the shakiest part)
2) A State passing a law prohibiting marriage by one specific group of people is taking away their rights of life and liberty
3) Therefore, said law is found to violate the Fourteenth Amendment which grants life, liberty, and equal protection under the law to all United States citizens, and is thus unconstitutional.
I think that's the Best TL;DR; of the ruling I've found so far.
#1 was found by the court almost 80 years ago in Loving vs Virginia[1]. What the court found was that this applied to the rights of same sex couples.
The court has been building the legal framework for this for about a decade. They found that Civil Unions must not be legally different from Marriage. From there it was a simple matter of ruling that existing civil rights rulings did in fact apply to LGBT folks.
Marriage is a legally-binding contract. Since it is in the domain of public law, allowing religious beliefs to support or interfere with it would, in essence, allow the religion to be intertwined with the state itself. So, in my humble opinion, separation of church and state alone would require it to be legal for all people. In addition, just as states can't pass a law to allow for racial segregation of contracts, they can't pass a law to allow for class-based segregation of contracts.
Of course, I am far from a lawyer, and this is a pure layman's point of view.
The same reason that the Civil Rights act had to be passed in the courts and the first students in integrated schools in the south had to be marched in with armed guard.
"Democracy" is frequently used interchangeably with freedom, but never underestimate the power of a close-minded majority to rule with tyranny and impose their will and discrimination on a minority - racial, sexually-orientatated, or otherwise.
The essential response from Kennedy et al. was two-fold:
1. Marriage is a Right because the due process and equal protection clauses were designed to be interpreted broadly as society came to "understand" liberty in new ways. I think this is actually pretty damn accurate -- I have no doubt that some of the founding fathers had slavery on their minds, even though at the time the amendments we're interpreted in that way.
2. Rights are not subject to the "vicissitudes" of public opinion -- the democratic process doesn't get to take away rights.
Roberts and Scalia mostly disagreed with (1), but there was very little substance to their argument. Read through the four justifications given by Kennedy. Roberts and Scalia doesn't respond to these. They just sort of complain about a slippery slope to tyranny. But this court is by far less activist than previous courts and we have yet to devolve into a dictatorship-by-SCOTUS. So I'm sceptical of the veracity of their slippery slope argument. It would have been more compelling if that had talked more about this specific case.
Roberts and Scalia also made some more practical arguments, e.g. that democratically selected policies are more robust protections because they can hash out the details. I mostly believe that's a false dichotomy because there's very little evidence that courts conferring Rights upon groups of people actually shuts down legislative action or debate on either side of the question. Look at abortion or civil rights. Ultimately, I find this argument extremely ahistorical and massively empirically denied.
(As an aside, I think Scalia's "o'weening pride will be our fall" thing was a pretty dickish thing to say, given the overloaded connotations associated with pride in this case.)
Sorry, but as a lawyer totally in favor of gay marriage, Roberts, at least, is completely right on the legal theory.
There has been basically nothing, in the history of our country, considered more of a state right than defining marriage.
The supreme court is not a ruling council. Our constitution is about freedom from government intervention, not guaranteed government benefits.
The debates over everything in the past that led to amendments looked roughly the same as the debate over same sex marriage. The only difference is this time a court ended it by deciding to change the constitution.
Wow. I just read it (for the interested, it starts on page 69 and is well worth the read for anyone even the slightest bit interested in constitutional law), and it brings up some very good points.
My counter would be this: Of course it would be hubris to think that SCOTUS can "create 'liberties.'" But that is not what SCOTUS is doing in this case. There's a clear reading of the Bill of Rights where it is up to SCOTUS to clarify the definition of "liberty" or "equal protection" in the 14th Amendment as the general human understanding of human rights expands - as ambiguous language in the amended Constitution, it is very much in the federal judiciary's domain.
Now, if the states or the citizens feel strongly that this interpretation oversteps what should be the judiciary's domain, then there's a process for the other branches and the citizenry to tighten the limits of the judiciary's domain. That is the process of a Constitutional amendment. But to say, as Scalia implies, that SCOTUS should wait for an amendment or legislation before being able to expand the interpretation of ambiguous language in the amended Constitution, is counter to the very mandate SCOTUS was given in the first place - it should not wait or falter when a reasonable case is presented to the body, and where constitutional language is ambiguous. I applaud the Court's courage in living up to that mandate today.
...
And at the end of the day, Mr. Scalia, when it comes to bodies-not-representative-of-the-human-citizenry broadly interpreting ambigous language in the fundamental Laws, we should truly be glad that this is what we're seeing, not https://en.wikipedia.org/wiki/The_Evitable_Conflict ... :)
Scalia is the same clown who opinionated that corporations are people and politicians can accept all the money lobby throws at them anonymously. When he gave this ruling, he never thought his Court was a threat to the democracy or he grossly misinterpreted constitution or completely disregarded founders original intent or violated deeply held belief of most Americans. But apparently gay marriage does all of that for him. His other dissents includes things ranging from teaching creationism in schools (yes, he supported that) to environmental law cases. In all of those dissents he openly accused his colleges for relying on their "private" opinion instead of actually adhering to their job of interpreting constitution. If you look at how he himself did his job so well to interpret constitution so that corporations have same rights as people even years before gay people can dream of, you see how his twisted view of the world is.
Overall, I would expect justices in supreme court have display some level of courtesy, dignity and respect to their own colleges on the same bench. Accusing them as being unprofessional, incompetent and even intentionally so malign to declare them threat to nation every time they disagree with him - all these is clear indicator that Scalia is not fit for the bench. Unfortunately people have to suffer through him because of the rule that he can't be replaced til life.
You could apply that to a lot of other situations. What about the right to own slaves? Southern states certainly preferred if that was handled at the state and not federal level.
Sure, marriage is a "license" but you could make "negro ownership" a license thing and it wouldn't change things.
> In brief, their view was that resolving this issue in the courts erodes the democratic process.
That the issue made it to the supreme court shows that it is following the democratic process laid out in the constitution. If it has to be decided on by SCOTUS, the issue has already been through a number of other checks and balances. SCOTUS decisions are part of the American democratic process, and it's incredibly disingenuous of Scalia to complain about it.
Basically the "this is not democratic process!" is a standard dog-whistle cry put forward when conservatives lose a vote. Progressives have their own cries, of course, but "this isn't democratic, and the proof is that I didn't win" is a standard losing conservative trope.
The best argument is: that's the way we do it in the US. We've never waited for complete agreement among the states before acting on the Federal level, regardless of whether it is a Constitutional Amendment or a SCOTUS decision.
This article shows the number of states that have reached consensus on Women's Suffrage, Interracial Marriage, Prohibition and a few other issues. Same-sex marriage has actually had more consensus than many of those other issues did before SCOTUS jumped in.
I agree with them in a sense -- it's not democratic. Neither was desegregation. As the saying goes: democracy is two wolves and a sheep voting on dinner.
Scalia's opinion is that, effectively, the courts should be judging based on Scalia's personal opinion of the "legal culture’s conception of constitutional interpretation". He thinks the culture no longer interprets the constitution in, well, "the right way".
In the previous paragraph he points out how, effectively, any majority-leaning set of judges can just invent new rights to assign to the country and they will be permanent [or at least, until a later court overturns them]. And he's right. But this is not news. Presidents have been trying to assign judges that lean their way on issues since... a long-ass time. The judges are human, moral, and they change their minds about how to interpret the law as the mob's mood changes.
And he's right that the majority simply shoving it's way down the minority's throat is unjust and is going to breed contempt. When the North defeated the South, racial tension didn't just disappear overnight. Those in the South kept a grudge and an ignorance that persists to this day. We may be using the power of the majority to force the removal of the flag, but those people who find that force offensive will not forget it. We didn't convert them, convince them, or make them understand; we held the proverbial Public Relations gun to our leadership's heads.
You ask why the states shouldn't have resolved the issue over time. Should the federal government have allowed some states to continue slavery? We all know it's a crime against humanity now, but what actually makes it a crime? Is it some old english scribbled on some parchment centuries ago? Or is it merely an intangible, unwritten law that reversed itself naturally as society changed over time?
The truth is, human civilizations have been morphing and evolving for thousands of years and they aren't going to stop doing so because some old farts had an idea a couple hundred years ago and we're trying to stick to their idea as hard as we can. Never changing, no matter how hard our society demands it, becomes simple fundamentalism, and our country was not founded on fundamentalism. Our country was founded - no matter how trite this sounds - on the idea of liberty over tyranny. We're always going to lean more towards liberty than tyranny.
We have a pretty good track record so far of not letting the states or federal government erode our liberty just because of the color of our skin, or our gender, or sexual identity, or religion. We protect people, always. But we don't limit people just because we don't like them or are afraid of them. Any time a state is asking to do that, we will eventually push back hard enough that the state will lose.
As a point in examining history the supreme court I thought was usually the case where issues like this bubble up. i.e.
Abortion
Women Voting (I think?)
Corporate Entities etc.
What happens when a member of a gay couple gets sick in a state that doesn't recognize gay marriages? What do gay couples do when they file their federal taxes?
Currently, you can file your federal taxes as "married" if you got married in any state that recognizes marriage equality. This right does not end when you move to a different state, so there are couples who have to file as two singles in Alabama but as married to the federal government because they got married in Vermont. So, the answer to your second question is: status quo.
The first question would probably decided by a judge.
Essentially, the question is whether marriage is a right, or is it a privilege.
If it is a right, then it should not be subject to the democratic process in the first place, so taking it out does not count as erosion. If it is a privilege, then it can be granted (or not) through the democratic process. The Court held today that it is a right.
Disclaimer--I have not finished reading all the opinions yet.
> opinion also reasserted that people who are really mad about this can continue to be mad and vocal about it, as guaranteed by the First Amendment
Was this a question? I don't think I've heard anyone ever say otherwise.
I'll add though, that people long have cloaked oppression in religion. People justified (and still justify) slavery, segregation, and oppression of women under the guise of religion, for example. Some might have been sincere (not that it justifies oppressing others), but for some the 'ultimate' authority of their God is an effective defense against any mortal criticism.
EDIT: To be clear, this is not a problem with religion in particular. I'm only discussing religion because that's the issue on the table. Thanks to chrisguilbeau for pointing that out; I agree with his comment below.
To be fair, the things you mention (slavery, segregation, oppression, even genocide) have been justified by people led by pure atheistic humanism effectively cloaking oppression in logic, academia and scientific theory (Mao, Stalin, Hitler, Pol Pot). I think it's fair to say that people with all sorts of ideologies have treated those they fear, don't understand or just plain don't like pretty poorly.
I'll add that some who have been at the forefront of fighting for the abolishment of the oppressions you list have done so while following Christianity (MLK, Wilberforce)
There are quite a lot of people who argued that changing the definition of marriage was an infringement of their religious rights. I've never been clear on how that was supposed to happen but maybe you can dig it out of the oral arguments.
I am one of those religious types - if I may give you me reasoning or at least my ideas:
The immediate difficulty comes when we as religious citizens have trouble with separating what is civilly permissible with what is a religious ideal.
Long term, religious people are worried that our institution and faith will not be allowed to continue if a super-majority deems us unworthy - as we have seen through history.
As for me I'm not terribly upset at all as over my short life I should be infinitely more worried about my sacramental relationship with my wife than what others claim marriage should look like.
I would also point out from a religious standpoint that some people have found solace today actually points to the reality of how wonderful sacramental marriage truly is.
The immediate difficulty comes when we as religious citizens have trouble with separating what is civilly permissible with what is a religious ideal.
Indeed. You, or any other religious group, can have whatever prohibitions you believe in your own lives, homes and churches. Different groups can have different prohibitions. However, they must therefore be kept separate and out of the public law and state, because that space can only accomodate one or zero religions. The US constitution specifies zero: no establishment of religion. This enforces a ceasefire between the doctrines that would otherwise fight to be the one doctrine that has control of the state, as Europe experienced during the Reformation and Islam is experiencing in the Sunni-Shia conflict.
For decades if not longer it was non-straight people who were deemed unworthy and not allowed freedom from persecution by the religious supermajority. There really isn't a desire to put the boot on the other foot - provided you don't condemn people.
Perhaps if the spiritual and temporal benefits of marriage were entirely separable this wouldn't be a problem. But the UK tried it with civil partnerships and it was so obviously a "separate but equal" (ie not equal) arrangement that full equal marriage was enacted.
Thanks; it's very valuable to learn from your perspective.
> Long term, religious people are worried that our institution and faith will not be allowed to continue if a super-majority deems us unworthy - as we have seen through history.
A sincere question: I can see that risk for small religious minorities facing a history of discrimtination (e.g., Jews and Muslims). But most people talking about this are white-skinned Protestants and Catholics. Have they ever been subject to discrimination in the U.S.? And aren't they the most powerful political grouping in the country?
There was discrimination against Catholics in prior generations, but I don't see that now (just look at the Supreme Court!).
It is indeed a sincere question! I'd love to whole-heartily agree with you that our country is a bastion of tolerance and courtesy, and in the grand sweep of history we could argue such.
But I would also say that we have persecuted the weak from the start - Native populations, African-Americans, Irish, and Japanese to name a few.
From a religious and biological standpoint our greatest persecution is our most recent - we have (in my opinion) disposed of 50,000,000 children in the womb during the last 40 years for various reasons.
So, while indeed Christians have nothing to fear based on our numbers, I could imagine that in the future that our claim a supernatural relationship with an unprovable entity will be deem us mentally unfit and not worthy of consideration.
Oddly enough our Bible acknowledges us as crazy " We are fools for Christ! [...] We are weak, but you are strong! You are honored, we are dishonored!" in 1 Corinthians.
The weird bit - from a Christian perspective, we Christians deserve persecution.
We have been given the faith and love of Jesus Christ, and we have not shared that love and kindness with our neighbors. From our standpoint, those that have been given much will be called to account, and (again from our standpoint) we have been given everything in Christ Jesus.
Thanks for taking the time to answer. There is too little conversation between different parts of the political spectrum, too much of an echo chamber for everyone, and we end up not taking other people's interests into account.
Certainly I agree that many groups have been persecuted, and I understand how abortion could be very troubling depending on your beliefs. To me, persectution of Christians seems to be a far-off, theoretical possibility at this point, but it's too easy to downlplay risks that won't affect me. I certainly see that, in some settings, taking a religious approach to an issue would be a non-starter, so in that respect people with strong religious beliefs are marginalized.
Thanks again. It's very interesting and enlightening.
That is because largely these laws won't be weaponized to stick it to them. There was a youtube video of a guy going around to Muslim bakers trying to get them to bake him a gay wedding cake, which they of course refused. And the US media collectively mouthed a we-do-not-give-a-fuck.
>And aren't they the most powerful political grouping in the country?
If they really were, they would have stopped this ruling presumably.
Unfortunately, in NC, we have a law on the books allowing magistrates to refuse to perform marriages that would not be consistent with the magistrate's personal religious views. It's insane, I know.
Kennedy is addressing the idea (myth) that churches would be compelled to perform same-sex marriages or somehow face legal consequences for speaking on the issue.
The key point about the Idaho ministers is this: "The Hitching Post has apparently in the past operated as a for-profit business and offered civil services as well as religious ceremonies. Earlier this month, it either became a religious organization or decided to present itself as such. If the Knapps are operating and plan to continue operating the Hitching Post as a religious organiztion, they have no reason to fear prosecution from the city."
The closest thing I have seen is that Denmark apparently forces all church buildings to be available for gay weddings. No priest is forced to officiate, but the local bishop must arrange a willing replacement if necessary.
Denmark has a state church, which means that the church can influence politics, but also that politics can influence the church. So if church buildings are state buildings for marriage, and the state allows same-sex marriage, then those buildings have to accommodate same-sex marriages.
If the church has a problem with this, it should divorce the state.
In neighbouring Sweden, church and state separated in the year 2000, so when same-sex marriage was finally made legal in 2010, this was simply not an issue. The Church of Sweden can deny same-sex marriages on its premises and by its staff if it so chooses.
> Was this a question? I don't think I've heard anyone ever say otherwise.
As a former Mormon, I'll give a resounding YES. Mormons have a persecution complex. And whenever Prop 8 or gay marriage is brought up it gets even worse. They tend to inflate opposition - you say "we should legalize gay marriage" and they will respond "I have a right to talk about my religious beliefs!!"
IME, it's just part of the rhetorical toolbox of the 'outraged conservative' (I'm not criticizing all conservatives, just those who get carried away with this talk radio / Fox News rhetoric). Outrage, persecution complex ... you can see it in some of today's dissents: Alito protesting that people opposing gay rights will be criticized (is this an issue for the Supreme Court?), and, you won't believe it, but Scalia was outraged. Why should Friday be any different than Thursday?
>Was this a question? I don't think I've heard anyone ever say otherwise.
You live in a very optimistic world! 2 quick examples: First, Glenn Beck and other popular conservatives have said exactly that, and worse: http://www.theblaze.com/stories/2015/04/30/glenn-beck-if-gay...
Second: Do you remember the Mormon funded ad blitz in California, which promised all kinds of (patently untrue) negative consequences if prop 8 went the wrong way? Kids being indoctrinated in grade school, churches of all kinds forced to cater to same sex couples, etc.
I think people may have a hard time separating the two. They feel that it is infringing upon their religion, and they associate that religion with the First Amendment which they use to express it.
I also think they are putting it in there as a covering themselves, preempting the argument from others.
So what happens to clergy who refuse to perform such "weddings" on religious grounds? All major religions have at least a majority, if not uniform, disapproval of "marrying" any other than man & woman. We already have cases of punishing & re-educating bakers for adhering to their religious views on the subject, how much more so those who may face compulsion to perform a union they cannot religiously condone?
ETA: to wit, how to reconcile the court's ruling with the court's claim none will be compelled to facilitate such unions against their faith?
> So what happens to clergy who refuse to perform such "weddings" on religious grounds?
Nothing.
> We already have cases of punishing & re-educating bakers for adhering to their religious views on the subject, how much more so those who may face compulsion to perform a union they cannot religiously condone?
Clergy are not public accommodations and are not subject to non-discrimination law. Clergy in the US can still refuse to officiate interracial marriage for instance.
The bakers you're talking about were not "punished and re-educated for adhering to their religious views", they were punished for discriminating against a protected class in the state they operated in. Just as they would have been punished for refusing cake to an interracial marriage, even if condoning it were against their sincerely held religious beliefs.
But you really shouldn't worry about that: this SCOTUS decision only forces states to issue and recognise marriage licenses to same-sex couples, it does not force them to make sexual orientation a protected class.
And in all 29 states where sexual orientation still isn't a protected class, same sex couples can have a cake-less marriage in the morning because businesses aren't forced to serve them, and then get fired in the afternoon because their bosses can discriminate against them for reasons of sexual orientation.
Nope. They changed that because the LDS had started expanding outside the US and into very ethnically mixed countries (Brazil). I know of no source claiming the move was motivated by IRS intervention.
Nothing happens to them. Even today, Catholic clergy won't perform many opposite-sex marriages unless certain conditions are met, like having it in a Catholic church and requiring pre-marriage counseling.
Clergy have every right to refuse them. Other people have every right to express their views in peaceful, democratic fashion, e.g. picketing such churches, just as they would with a church that advocated any other distasteful view.
No-one, those bakers included, is legally compelled to support gay marriage. Some people may find themselves economically compelled to do things they find distasteful, but to a certain extent that's always true for anyone who has to work for a living.
There are some things that we consider it unfair to economically compel people to do, e.g. OHSA. Do you think that should be extended to e.g. making it illegal to make someone's job contingent on officiating gay marriages? What is the natural boundary there - should it be illegal to fire someone for doing something they're politically opposed to? Should a barman have the right to e.g. refuse service to women because they don't think women should be allowed to drink?
It's not that clear cut. Could a business refuse service because the customer is black? Could a town effectively segregate gays into separate but equal neighborhoods, with separate but equal businesses, churches, schools, etc?
But that is not the same thing at all. People can (and will) get married with or without cakes. A baker refusing to serve a gay couple is no different from refusing to serve a black couple or a handicapped couple or a fat couple. That's not religion, that's commerce. Religious beliefs do not entitle you to discriminate in matters of commerce.
It sounds like our hypothetical baker can't object to giving service on any grounds by your explanation. Are there truly no limits in your mind?
Must the Muslim baker need to bake the gay marriage cake and deliver it to the ceremony just because some customer wants one made? Must the Christian baker bake a cake with a pentagram and goat head on it and deliver it to the sacrificial altar just because some customer wants one made? Or, how about yesterday's lurch issue? Shall we force the black baker to bake a rebel flag cake with some racist epithet on it because some a-hole customer wants it?
Can't we back off here and simply respect one another's personal or religious beliefs? Respect must flow in both directions in a civil society, in my opinion. If the baker doesn't want to participate in the target celebration based on personal or religious beliefs, why not just amicably part ways? Why the bent noses if the customer can find some other baker that will gladly take the money and participate. Why does this even rise to the legal challenge level?
> It sounds like our hypothetical baker can't object to giving service on any grounds by your explanation. Are there truly no limits in your mind?
Of course there are limits. There are all kinds of legal bases for discrimination. For example, if someone comes into your shop and starts screaming at the top of their lungs you can kick them out and refuse to serve them. But you can't legally discriminate based on skin color, gender, religious beliefs, sexual orientation, or any other legal behavior that occurs outside of your shop.
> Must the Muslim baker need to bake the gay marriage cake and deliver it to the ceremony just because some customer wants one made? Must the Christian baker bake a cake with a pentagram and goat head on it and deliver it to the sacrificial altar just because some customer wants one made?
If they offer delivery as part of their service, then yes, they do. If not, then they don't.
> Shall we force the black baker to bake a rebel flag cake with some racist epithet on it because some a-hole customer wants it?
That's a different situation. That's forcing the proprietor to make a particular kind of product rather than serving a particular kind of customer. If a white supremacist orders a cake from a black baker, then the baker has a legal obligation to comply (assuming the customer conducts himself civilly in the store). But no, you can't force someone to make a cake with the word "nigger" on it just as you can't force someone to make a cake with the word "fuck" on it. You just can't make the decision on whether or not to make the sale based on who the customer is.
> Can't we back off here and simply respect one another's personal or religious beliefs?
Of course we can. But we can't be legally obligated to.
> If the baker doesn't want to participate in the target celebration based on personal or religious beliefs, why not just amicably part ways?
Because that's not how we do business here in the U.S. Here in the U.S. if you want to run a business you are not allowed to serve only white customers no matter how deep and sincere your belief is that black people are the spawn of satan. Ditto for handicapped people. Ditto for Christians and Muslims and Raellians and atheists. And ditto for gay people.
I think there's some potential inconsistencies in what you're saying here.
Let the _particular kind of product_ (your emphasis), for the purposes of this discussion, to be the theme of the cake. The theme could be gay marriage, rebel flag/racist, birthday, straight marriage, etc. You seem to be operating from the premise that the theme-to-baker pairing matters.
And let the way the transaction goes here is: customer and baker negotiate over what goes on the cake/cake size/etc, collect details about delivery or pickup, exchange money, then the cake is made in time for the agreed upon date, and the cake is picked up by customer or delivered to the target site by baker.
What I hear you're saying is there's a difference in the discretion the baker has between making the racist-themed cake and gay marriage-themed cake. And, then you said,
> If they offer delivery as part of their service, then yes, they do. If not, then they don't.
You seem to indicate there's allowed baker discretion depending on whether the cake shall be delivered or not? What does that have to do with it? Participation is participation, right? Participation begins in the initial conversation about what goes on the cake. I think maybe you were talking about something else.
I'm just trying to understand your mental baker discretion matrix of offense-level vs. religious freedom vs. protected class. Like, legally would a white baker have to bake the rebel flag racist cake but not a black baker? Also, is there some legal wiggle room? For example, could you legally make the justification that a Muslim bakery would not have to bake the gay marriage cake because it's SO offensive/disruptive to them, but Christian bakeries WOULD have to make the gay marriage cake because Christians are normally so tolerant and docile? Maybe I'm not forming my questions properly, I'm just trying to untangle what you're saying.
> Of course we can. But we can't be legally obligated to.
Issue 1 is: can a baker be forced to make a cake for a gay couple? The answer is yes.
Issue 2 is: can a baker be forced to make an X-themed cake for some value of X? The answer is no.
AFAIK the only difference between a cake for a gay wedding and a straight one is the little statue on top. I suppose one might quibble over whether a baker can be forced to put two little groom statues on top of the cake they've made. But no one is actually fighting over that. What is at issue is whether a baker can refuse to make a cake -- any kind of cake -- for a gay wedding because they don't believe in gay marriage. And the answer to that is a definitive no.
(And a baker can choose to offer delivery or not. But if they offer delivery, they can't refuse to deliver to a gay wedding -- or a mosque or a synagogue or a satanic temple.)
> What you're saying about delivery makes sense, thanks for explaining.
My pleasure.
> Issue 1 is just Issue 2 in my mind with X filled in. These kinds of inconsistencies bother me.
But they are completely different. In case #2 we're talking about two different products. In case #1 we're talking about two different customers. That's the difference.
> That's a different situation. That's forcing the proprietor to make a particular kind of product rather than serving a particular kind of customer. If a white supremacist orders a cake from a black baker, then the baker has a legal obligation to comply
No, that's not true. You can serve, or not serve, anyone you like, so long as the reasons you don't serve them are not protected characteristics.
So a straight person who is denied purchase of a gay marriage cake has no legal standing, but a gay person being denied purchase of a gay marriage cake does have legal standing? It all hinges on what the customer declares themselves to be, the slip-and-fall lawyers must love this kind of thing.
I know this is a silly premise, but it sounds like unequal treatment.
A straight person who goes to a gay balers and tries to buy a straight wedding cake for his straight wedding, and who is refused service by gay bakers who say "We don't make straight wedding cakes!" has a case. He was denied service based on a protected characteristic: his sexuality.
If he asks for the cake and the gay bakers say "sadly we are fully booked and we just don't have time to male the cake for your planned wedding date" then he doesn't have a case because there's no protected characteristic stuff happening.
Ok, but is this discrimination based on sexuality only? It doesn't seem so black and white to me because there is a religious objection/religious freedom component to it. This is similar (albeit a much less grave subject) to the Amish who weren't eligible for the draft because they were pacifists religion-wise.
Yes, the "we're all booked" excuse seems like a plausible, but dishonest, out. I suppose another out would be to take the order and then outsource the work to some baker who doesn't have any qualms about the nature of the work.
A gay / straight baker cannot refuse service based on sexuality
A religious baker cannot refuse service based on religion
A gay baker cannot refuse service based on religion
It follows that a religious baker can't refuse service based on sexuality.
Your concientious objecter point is good. I don't really have much of an answer. I suppose that asking a man to kill another man is different to asking a man to bake a cake for another man. And we used to threaten to execute concientious objectors - we did put them in prisons.
Edit: as Eddie Izzard would say - "cake? Or DEATH?"
Yep, being a conscientious objector wasn't enough to get off the hook, thank goodness for volunteer military.
Well, so I think I can comment on the "gay sex, big deal?" question from a deeply Christian religious/believer person's standpoint.
I'm not hardcore into the bible, but I took some bible study on the old testament for the first time this year. We studied Moses and we ran through the "man laying down with another man being detestable to God" passage and the study notes didn't really address it directly other than to say God gave the people sexual purity laws and you gotta pray about it and decide for yourself. As I recall there was also a bit in there about chopping a woman's hands off if she touched a man's junk inappropriately, so yeah, lots to pray about...
Well ok fine, so I get into the discussion group, and the men were much more specific and clear on the topic - the Word said gay sex is abhorrent to God, so there you go, case closed. I can tell you one of the main points they wanted to get across to me was that God doesn't just want your praises, He wants you to OBEY.
So, with that kind of mindset, I can see how deeply screwed a religious baker would be if the law tells them they must do one thing or get sued and God is saying, no, you gotta set yourself apart from that and not participate in or bless that thing.
The men in my discussion group also said that Jesus discussed marriage specifically in the context of man and woman too, although I'm not well-versed in the new testament and I never read that myself. One of the most interesting things I learned was Jesus said that God HATES divorce because of what it does to the family.
You're not supposed to refuse to do business with someone on the basis of your religion (or theirs). However, even though it's illegal, but plenty of people get away with it - "We don't like yer kind in here!"
Getting out of the draft is different, you aren't offering a business to the government.
I don't know, I suppose it would depend on how I was treated by the baker. If the baker cussed me out and physically ejected me from the shop, I'd probably sue. If it was a contrite but firm, no, and there was an amicable parting of the ways ... I don't know. Would you still sue at that point?
I think you misinterpreted the question. It was how does someone handle the situation where no bakers (plural, not just one) will serve them for something like racial reasons. Do they just have to suck it up and go through life not using a baker? What about grocery stores, or mechanics?
I didn't misinterpret your question at all, I just chose to equivocate rather than answer you directly. ;)
What you are asking is a question of gays or lesbians living and surviving in a place that has something like institutional racism or segregation setup against them and where services are denied to them. Does such a place exist in the states today?
Absolutely nothing. The government can't coerce religions to perform ceremonies. The right to marriage is not a religious right, it is a civil right, and will be provided by civil authorities.
For example, in Massachusetts anyone can become a marriage officiant by applying to the governor. There's a form; permission is always granted. As a result, I have performed two marriages.
The better question is, what happens to a civil official who declares that it is against their religion to perform their civil duty?
Oh, I see. You are conflating a 'religious service provider' with, say, a business who bakes cakes.
Religious institutions are not considered public accommodations so they are not required to offer their services without discrimination to protected classes.
The baker in question specializes in weddings. They may refuse customers if the function at issue is not a wedding. The baker considers the formalized celebratory union of anyone other than a man + woman to be not a wedding.
Now, based on no legislation (as one dissenting Justice makes scathingly clear), a new "protected class" has been created. The baker still considers a pair entering that "protected class" not a "wedding", a view the ruling notes still should be respected and free to hold & act on.
Well, the SCOTUS just decided that same sex unions are, in fact, weddings and sex is an existing protected class based on actual legislation and precedent. That means the baker would be discriminating illegally as a public accommodation on a federal level if they refused their service based on the sex of that event's participants.
Non-existent because they do not provide a public accommodation and are exempt from legal entanglements based on discrimination.
IOW, even though they provide a service, it is not the same class of service, legally, as a cake maker or any other for profit entity serving the public.
> Religious institutions are not considered public accommodations so they are not required to offer their services without discrimination to protected classes.
What if their services are funded by the government, such as services to the poor? Can they refuse poor gay people?
My old church refused to marry anyone who was previously divorced. Clergy have a lot of leeway in who they can refuse. No one is forcing them to do anything.
The four dissenting opinions in this case are interesting. They deal mainly with the fact that, strictly, such pronouncements are not within the authority of the Supreme Court. They are correct, in a sense. But by that logic, Heart of Atlanta Motel, Inc. V. U.S. (1964) should not be; by that logic, we should have waited for America to realize, of its own volition in 50 states, that allowing a business to deny a black man a hotel room is fundamentally wrong. But for the group wronged -- consider the same-sex couples facing the death of a spouse, the endless and expensive legal hurdles, or the millions of black Americans who couldn't sit at a lunch counter -- waiting for all 50 states to come to the right conclusion is cruel. No, the court has a moral obligation, where it can, to stand up for the people for whom justice for all would come too late. It's certainly not what the Founding Fathers had in mind. But the Founders were not infallible, were not seers of the future; it is just as incongruous to hold them responsible for their failures as it is to hold us responsible for our failures we have not yet realized.
I think Kennedy knew this was going to be read by far more laypersons than a typical opinion, and wrote it accordingly. It reads like a FAQ, going through all the common objections and concerns one by one and addressing them in order.
While this is excellent news for my gay and lesbian friends, I see no progress on polygamy.
Which, unlike same-sex marriage, is an institution with deep roots both in America (the Mormons were forced to give up this sacrament as a condition of statehood) and in the majority of world cultures, where it ranges from condoned to celebrated.
Without getting unduly personal, let's say that I have a stake in that question being resolved. I know several triples living quietly among us; they face the same kind of problems (child custody, hospital visitation, inheritance rights) as same-sex couples faced prior to this decision.
What the polygamists of the nation lack is a powerful lobby. <shrug> One may hope that nonetheless, reason and freedom will prevail here as well.
EDIT: nation, not world. Worldwide the situation is different. America is suffering from its Christian legacy here. Most Christian countries are adamant about denying this right to their citizens.
I have no problem with polygamy, as long as it is a consensual relationship between all adults involved.
The real problem is that government has gotten into the marriage business and it doesn't belong there. The issues you mentioned (child custody, hospital visitation, inheritance rights) really have nothing to do with marriage and should all be assignable without a government endorsed marital contract.
That's much more along the lines of what I think. It's kind of the libertarian dilemma - with Gay Marriage, there's one huge, loud camp of religious homophobic bigots demanding that big daddy Government say that Gay Marriage is an illegal abomination, and another huge, loud group of homosexual-rights activists demanding that big daddy Government say that Gay Marriage is a-ok and governments everywhere are required to perform it. It was never really about marriage or anything - it's about getting the Government to bless your side of the argument with a magical scepter of rightness.
Meanwhile, my/our camp of libertarians saying hey, the Government really shouldn't be in the business of deciding who can be in what sort of relationship with who else or blessing either side of a controversial argument is disappointingly small and quiet and usually ignored.
It is politically unviable because it would basically take away the current benefits from straight married couples to further a libertarian pipe dream.
Politics is the art of the possible: extending marriage benefits to gays and lesbians is a lot easier than clawing it away from all straight couples in order to satisfy a desire for libertarian ideological BS.
I'd say that the proper libertarian solution is not to eliminate those benefits, but to detach them from marriage. Handle inheritance, hospital visitation, benefits sharing, and other such things directly, instead of linked to marriage. I think it would solve what the gay marriage proponents say they want, and probably a lot of other edge cases too. Who knows how many other people out there the current options aren't working for, but will never have the level of support gay marriage does to write new laws for their case?
But then, this was never really about benefits in the first place. If it was, they could have had civil unions a decade ago. This is about getting the Government to endorse it as Marriage to stuff it in the face of all the homophobes out there. This has always been entirely about ideological "BS", but not the kind the myself and any other libertarians are spewing.
You're not being ignored. Lots of people agree that, in an ideal world, the government not having a role in marriage would be a decent solution. This is not an ideal world and that political position is not feasible; in the art of the possible, that is not.
On the other hand, we have people being harmed by the unreasonable jank thrown at homosexuals who wish to marry. The perfect must not be made the enemy of the good out of a sense of ideological purity.
Well, I do know that, which is why I'm not really all that against it. I'd like to see it happen a different way, but I can't see actually opposing it in any meaningful way, especially when it would inevitably mean allying with the types of people who are actively against it now - there's a lot of hate and negativity in that camp.
The thing about Government power, though - everything seems all nice and cool when it's pointed in a direction that you like, and it makes everything happen real fast and lays the smack down on your ideological opponents. But that power can turn on a dime and get pointed right back at your side, as has happened a great many times in history. Think it can't happen here? I hope it never does, but it does have a nasty tendency to happen in places and to people where they thought it couldn't, where they keep on doing the simple and efficient thing, because that couldn't possibly ever happen to us, right?
How could it be consensual between all adults? The marriage "license" in polygamy is between man and women, yet by secondary effects the women are fully entangled with one another. Yet if you watch any show on polygamy you'll see that a guy will keep adding new, younger wives while holding their current wives hostage (due to their lack of another option in terms of housing, money, etc). It's absurd to think that any thinking person would get in on the wife side of the polygamy pact when in the end they have their equality divided by X wives.
Smart folks have said that the reason homosexual marriage even became a thought was because of the transformation of marriage from a bond of ownership of man over woman to a shared partnership. A polygamous arrangement (as per the mormon church, not the polyamorous relationships of the hippies, etc) ends up with a hierarchy of power with one man controlling multiple wives, with the power to divorce, ruin, etc the others if they don't allow him to wed again.
I think an argument for polyamorous marriage could be made, but polygamy is essentially a raw deal for whoever isn't the hub of the marriage wheel (one man in the case of traditional mormonism, islam, etc.).
That's a polyamorous (group) marriage, not a polygamist one (at least as per my definition of those somewhat amorphous terms)
That said all of the legal agreements become far more complicated and likely null and void if one person drops out or is added. I think an argument could be made, but with the complication you're basically saying polymarriages would be like corporations, with their associated complexity.
Polygamy as practiced now is a "bring more childbearing women" into the flock type thing, which is by nature non-equitable. I doubt most folks in a polygamous marriage (by choice) would want to get involved in a polyamorous marriage and as such, I think you can't legally support a non-equal union of that sort.
>That's a polyamorous (group) marriage, not a polygamist one
Hmmm, please excuse my ignorance in such matters. I only married one woman and that is quite enough.
>you're basically saying polymarriages would be like corporations
Yes, exactly. Well put.
>with their associated complexity
I can't even begin to imagine the complexity, legal or relational. However, I can imagine situations where such an arrangement could be beneficial to the individuals involved.
Are you trying to say multiple adults can't all agree on something? Your argument is based on ignorance and you're no better than the people who oppose gay marriage. You've been fed Christian and feminist propaganda to make you believe that only two consenting adults can love each other and that if you happen to love more than one person you shouldn't have the same rights as other people who don't.
You basically don't think polygamists are equal. Now let's see you do a full 360 from being pro-equality to using the same arguments the bigots used against you.
You're perhaps confusing polyamory with polygamy/polyandry? To put it in hacker terms, polygamy / polyandry is forcing an edge reduction creating a hub and spoke architecture when the arrangement has to be a 1 to n-1 mesh. The equality of a mesh is an easy mathematical argument to make, but it isn't the argument polygamy/polyandry is making. Polygamy/polyandry is inherently unequal.
[edit] to get the math right a polygamous/polyandrous relationship maxes out at n-1 contracts. Polyamory would be (n*(n-1))/2 contracts and I would argue for equality that if n changed all contracts would have to be retermed. Polygamy / polyandry is unequal. Period. It's a mathematical fact. Polyamory I could be convinced of the possibility of legal equality, but not for polygamy/polyandry.
I'm not saying you're doing this, but this line of thinking is very often employed to minimize the damage done by discriminatory decision-making under the guise of "waiting for the perfect solution". Fixing what hurts people now is better than telling them to wait for something that will in all likelihood never actually come.
This has literally nothing to do with poly(gam|amor)y.
For one thing, looking for younger women / men is not wrong. As long as they're consenting, and old enough to consent.
Further, any relationship of any kind has the potential to be abusive. This is no ground to say it shouldn't be allowed. This is like the idiotic christian bigots that think homosexuals are bad because they're child molesters. No, they're not.
Scroll down to section 3.a.ii (or ctrl+f search for "Implication: monogamous marriage reduces the spousal age gap, gender inequality and fertility")
Anecdotally, this is what a family friend who worked as a counselor for Southern Utah University observed repeatedly. SUU is located in Cedar City, which has one of the highest concentrations of present-day polygamists in the US.
One problem I have with Polygamy is that I have never seen a 1-woman, multi-husband community. Sure, I've seen a few relationships in which this was the case, but when you look at the historic aspects in the US, it seems a very rare thing. That makes me wonder if there is a severe power imbalance in the relationships and what is truly occurring.
It's well known that in some modern US polygamy situations, there is a great deal of abuse of power, both in terms of controlling the wives, as well as controlling and abusing the young men who will not be allowed to have a wife. This further increases the societal costs and leads to more abuse of power, which is not what we need.
edit: I should add: It's a numbers game. Given that on average, there tends to be just slightly more women born than men, what happens with all the extra unmarried men (or women, though this is rarer)?
That same concern already equally applies to traditional marriage, in which some % are abusive. If you have a problem with polygamy on that basis, then you've got a drastically larger problem with the already existing system of marriage, in which millions of instances of abuse occur annually.
The best solution is to bring polygamy out into the open, legalize it fully nationally.
The government has no business dictating who can get married, or what the structure of marriage looks like, so long as the people in question are of sound mind and adults.
If I want to form a ten person marriage, with five men and five women, whose business is it to control us and stop us? There are only bigoted 'answers' as to why that shouldn't be allowed.
As to abuse in a typical 2 person marriage, yes, you're right, but this is also something that I believe society tries to deal with. There are always going to be abusive relationships, regardless of how many people are in them, but I do think that my question (opinion, whatever you want to call it), about how power and relationships change depending on the number of people involved is something to consider.
I totally agree with the fact that marriage is none of the government's business. But at the same time, we would probably want to change some tax laws and social benefits if polygamy became legal.
(I really couldn't care less if polygamy is legal or not. Yes, if there is a relationship of 5 women and 5 men, then there is no difference than traditional marriage system. But I really do wonder about what happens when you have 1 male with 10 wives, and 9 other young males with zero wives. In the past, this has traditionally lead to some form of revolutions. I haven't seen anyone actually answer this question yet, just people calling me a troll and a bigot.)
> I really do wonder about what happens when you have 1 male with 10 wives, and 9 other young males with zero wives. In the past, this has traditionally lead to some form of revolutions. I haven't seen anyone actually answer this question yet, just people calling me a troll and a bigot.
Most societies studied (83.5% of the 853 societies according to George Murdock, for example) preferred polygyny. In other words, what you describe as "1 male with 10 wives" has always been the norm in human history.
The real question is - why enforce monogamy, especially as extramarital affairs and unequal couplings continue anyway? Fairness and justice are human inventions; they do not exist in nature.
Not that I necessarily disagree with legalizing polygamy, but I think there is one non-bigoted answer: logistics. Our financial system in general, and our tax system in particular, has N=1 or N=2 hard-coded into it. There are other practical considerations as well. Suppose, for example, you have an N=5 marriage and three of them want to break away and take the kids. Resolving situations like that would be much more complicated than what we have now, and what we have now is already plenty complicated.
While true, it's not a valid reason for preventing progress on the deconstruction of marriage.
'Our system is messy and complicated, so if we add more variables, it will be an even bigger mess!' - so make the system less messy and enable more variables.
Can you imagine if someone came and said add this function/feature to the program and in response you said "the program is complicated and the code is long, no need to confound it any further with features."
In regards to your software development comparison, that happens all the time. Someone decides, this system is already so complicated it would be a mistake to try to bake in all this additional complexity. A more sensical solution would be to design a different system for handling these or deal with them in one-off cases if they are infrequent enough.
Vague metaphors aside, this happens occasionally in the industry I'm in (finance) when we trade small lots of non-traditional products. These products don't follow many of the rules that all of our other traded products do. Instead of re-writing our systems to deal with these(totally impractical), we manually shimmy these in to the database until they expire or are traded away, at which point we can forget about them.
On what basis would you argue it's defensible, when child custody isn't premised on marriage (or the lack thereof) to begin with?
I don't see what would change such that it would introduce any new complexity on that side of things.
The exact same complexity already exists today: step-parents. It's mostly a non-issue and is well defined. Step parents acquire no custody rights over the child inherently. If my wife remarries, and we had a child together, the parental rights are retained in myself and her. The same would be the case in a three-way break away on that ten person marriage; there would be (in this scenario) a two person custody of the child, eg the biological parents.
If I'm married and my spouse has a child then I am presumptively that child's parent too. That is, of course, not the only way I can become a child's parent, but it's one way. Polygamy complicates that. If one member of a N-way relationship has a child, do all of the other members become the child's parents
Again, I'm not saying this argument is valid or should carry the day, only that it is defensible and non-bigoted.
It doesn't complicate it, because the answer is: no.
Nothing changes about the legal custody system of children due to N-way marriages.
If two people in the N-way marriage have a child, it's not the N-way marriage that acquires custody, it's the two biological parents.
Marriages do not define custody, period. That is not how it works in the US.
Keep in mind that presumptively is not definitively. If there is a paternity test that later says otherwise, eg if your wife or husband cheated on you, then that other person can typically acquire parental custody, because they are the biological parent. All things being equal (not involving abuse or danger to the child), biology is the first line of legal custody.
What about adoption? The most sane thing to do near-term, would be to keep it the same - adoptions are max two people legal scenarios. If the system is cleaned up, simplified, or otherwise adjusted for N-way marriages, then perhaps later there could be N-way adoptions as well (and scientifically, we may eventually see N-way biological custody too).
You could recreate marriage as a form of incorporation which wouldn't be a bad idea if you think about the cost of growing old and having children. More adult partners equals more income to ensure the survival of its members and their children.
And yes, I read Moon is a Harsh Mistress too many times (I'm a sucker for that novel). :P
Nothing is stopping you from doing that today. In fact, if you're really serious about advancing polygamy, this would be the way to start: show -- don't tell -- us how it would work. Because right now the poster children for polygamy are (AFAICT) all white male religious nut cases who just want to use it as an excuse to keep a harem.
I never said I want to be in a group marriage, so I don't know why you seem to be suggesting that I should "show, don't tell" anything. I just said I could see it working out for some people. The fact that there exists an entire subculture of queer and pansexual individuals who are in such group relationships seems to me the proof in the pudding that it should be ratified as part of our civil law. And not some horny old man looking to recreate a Turkish harem painting.
I think it would be wise to consider the possibility that maybe the legal institutions involved in marriage aren't up to scratch in terms of what humans can possibly do in terms of romantic and intimate relationships. It's better, in my opinion, to incorporate a method by which we can address these issues by more effective methods (as in don't ban something just because you don't like it. You ban it because it's destructive to the social order.).
You realize that there are legal scholars already positing their legality right now, right? It's not too hard to search Google to see some of the more interesting papers being written on the subject from the legal point of view.
The social and psychological aspects are still scarce since we live in a society built around western European Protestantism (heteronormative). So, whatever research that does exist is relatively new or limited in scope.
> You realize that there are legal scholars already positing their legality right now, right?
Of course. On my list of social causes worth spending time and energy on, polygamy ranks pretty low. If it's near and dear to your heart I wish you the best of luck.
It's not so dear as you wish to be. I merely recognize the nature of law is not unlike any other logical enterprise. When you allow one form of inference the other forms that depend upon it must be analyzed to see the limits of it. Just like how legal scholars debate the limits of speech even today. It's both academic and practical.
If the white male religious nut case can provide and care for the woman and any resulting offspring and the woman are willing and knowing participants in the harem.
What's the problem? That you don't like it? That seems rather bigoted.
The problem is the religious nut case part, which often leads to the reality being very different from your rosy hypothetical. In real life, polygamous relationships often involve older men with young, often underage, women who have been coerced into the relationship and are often sexually abused. I have nothing against polygamous relationships among fully fledged consenting adults. But that doesn't seem to be what most polygamous relationships are.
I could be wrong. I haven't done extensive research into this. If you want to convince me, show me the data.
You realize the data is scarce because the phenomena hasn't been studied, right? You seem to be hung up on the Sister-Wives nonsense and see it as the only viable data point in a truly unanalyzed section of human behavior. The fact of the matter is that I personally know people who are polyarmous and none of them are the creepy Mormon/Branch-Davidian type. Most that I know who are poly are queer (like myself) and far from religious.
If anything, it should be you that should go and create a research program analyzing the nature of poly relationships in humans and the underlying causes, not me. I merely pointed out the reality that our law should consider accommodation for those individuals as it does for others. All you seem to be bringing to the table is scare mongering that depends more on the tiniest of slivers of human society for the proposition that poly relationships should be illegal. Such a proposition is not tenable on it's face nor in its contents thus far. Or in simpler terms: please do your own research because I'm not here to convince you either way (but you seem damn sure to convince me that my poly friends are some evil bad fundies wanting to rape children).
Edit: sorry for the rudeness. I take things personally sometimes.
Given it's illegal most everywhere, data is hard or little to come by.
There are two large groups: one with a pretty 'dirty' record regarding abuse/child marriages and another with a clean record. So this could come down more to an environment/community issue than a polygamy issue where, in one community/environment, abuse and child marriages are largely the norm and the other it isn't.
Warren Jeffs' Fundamentalist Church of Jesus Christ of Latter-Day Saints && Apostolic United Brethren. The former having the bad record and the latter having the clean record. (&& being the separator to avoid confusion) The former is larger than the latter but the latter is the second-largest church that practices polygamy.
E:
The burden of proof is also on you to prove that polygamy leads to abuse/child abuse as you are the one making the claim. Given there's little/no data to support either side, you'll have to wait for more research. Which would likely involve legalizing the practice and conducting studies.
I definitely agree on the complexity of our tax / govt financial and legal codes, and the problem that poses. The solution there is obvious too, and has been needed for decades anyway: simplification. Of course that's held up by political gridlock.
The easiest way to resolve the child situation would be to keep custody to two parents as it is today. Any children that exist in the N=5 marriage, would be biologically between two people. So the only thing that would be changing is marriage itself, not child custody laws (which today are not primarily built on marriage anyway, we can obviously marry other people that have pre-existing children without adopting those children as our own; and we can obviously have children outside of marriage).
Polygamy is simply very different than same-sex marriage. It’s associated with patriarchy and sexual abuse, rather than liberation and equality. It flourishes in self-segregated communities, Mormon-fundamentalist and Muslim-immigrant, rather than being widely distributed across society. Its practitioners (so far as we know) are considerably fewer in number than the roughly 3.5 percent of Americans who identify as gay or bisexual.
While some polygamists may feel they were “born this way,” their basic sexual orientation is accommodated under existing marriage law even if the breadth of their affections isn’t, which makes them less sympathetic than same-sex couples even if their legal arguments sound similar.
Nothing about marriage has anything to do with liberation or equality. That's a modern attitude. Marriage is associated with the treatment of a person as property and arrangements for political and financial reasons, even to this day. And yet here you are, saying one type of marriage is okay and the other kind that you're not particularly close to is associated with Mormons and Muslims and antiprogressivism, while lauding a modern view on one marriage and taking the dated view on another.
The reason plurals doesn't flourish, to you, is because the people who practice it don't tell you, lest you tell them what you just told us, and the inevitable "are you Mormon?"
Marriage of course depends entirely upon the married, their culture and their interpretation. Especially in America where we have fused 100 cultures and traditions, there's little you can call universal truths about marriage.
Every single child has a mother and a father. If that's not a prime universal truth, I don't know what is.
Men and women have been found by psychologists in every culture and tradition to differ in aggression and general activity level, types of cognitive strength, and sensory sensitivity. The differences between man and woman are obvious to all but the most ideologically blinded deconstructionists.
Don't be silly. Sometimes its a sperm donor; often the father is not biological. Children are orphans; they are adopted; they are born to a surrogate. That's got to be about the silliest thing anybody has said on HN for a long time.
The term of art for 1-woman, multi-husband arrangements is "polyandry". The Wikipedia entry [1] has a citation to a survey that finds about 50 out of about 1230 known societies in a 1980 ethnographic atlas practicing polyandry, so it is a distinct minority community-scale arrangement.
The next public, conventional taboo to broach is group and line marriages. As economic conditions worsen for some nations' middle class in the upcoming decades, line marriage can potentially offer a coping mechanism, trading off resource collectivization and time in exchange for recapturing increased security of various forms.
The only plurals I know are multi-husband communities and everyone involved are happier than clams. Your concern trolling to equate happy relationships with domestic abuse, simply because you don't understand them and think that everyone in a plural relationship is FLDS and lives in Utah, is pretty striking and antiprogressive (which is odd, considering you're attempting the progressive argument against their happiness).
And no, what you're saying is not "well known." You are arguing against certain fundamentalist groups, not plurals. They are not equivalent, despite this thread's clear goal to say otherwise.
>Without getting unduly personal, let's say that I have a stake in that question being resolved. I know several triples living quietly among us; they face the same kind of problems (child custody, hospital visitation, inheritance rights) as same-sex couples faced prior to this decision.
I made that argument to a couple of friends - that they were not fighting for equality (which will be fairly easy to set up) but for inclusion in the privileged club. They responded with "Well marriage is between couples, but defining the sex of the participants is discriminatory".
One of the problems with polygamy/andry is that we could hollow out the lower social classes of mating opportunities (it happens in india and china right now due to girl infanticide and it is not pretty).
Worth noting that at least one of the triples I referred to is a woman and two men. At least one is a man and two women. I'm being vague here, because bigamy is a felony.
We really have quite a long way to go on this front.
> I'm being vague here, because bigamy is a felony.
I'm sure your vagueness is really slowing down the investigative arm of law enforcement that normally goes around searching the internet for evidence of dastardly polys.
> One of the problems with polygamy/andry is that we could hollow out the lower social classes of mating opportunities
Let's not bring up the argument of legislating for maximal gene propagation, unless you're willing to ban all forms of marriage that don't serve maximal gene propagation. Fertility tests before marriage! No marriage among the elderly, because what's the point! Let's set up a new 3-letter agency for matchmaking!
Marriage is not a government mechanism to encourage mating. Stop trying to put government in the business of animal husbandry. We're not animals.
Not so long ago it was culturally enforced; it was not impossible to date and raise children while unmarried but there were severe social consequences and as a result not many people did.
I think we have yet to see all the consequences of this cultural change.
Legalized polygamy could create a lot interesting legal issues, particularly marriages of convenience. It would challenge a lot of traditional legal structures that assume a union between two people. If there is no restriction on how many people you can marry at once then you can start giving out residence rights via marriage or multiple wealthy individuals can amass large estates via marriage. I am sure there is a lot more.
This is not meant as an argument against legalized polygamy, rather to point out some of the obstacles it faces.
I don't have any moral objections to poly-marriage, but I don't think it's the same thing as gay marriage. Prohibition of gay marriage is rooted in the identity of individuals, but prohibition of polygamy is based on the amount of participants in the union. No one is discriminated against in the face of poly-marraige prohibition because it has nothing to do with the traits of any individual.
> The difference between the number of participants vs the gender distribution of the participants is academic.
That's incorrect. The difference is critical as it pertains to discrimination against a certain type of persons. Prohibition of gay marriage means "this type of person cannot marry that type of person"; this is a restriction based on type of person. Contrast that with prohibition of polyamorous marriage which means "a person can marry up to one other person"; this is a restriction based on a factor that is detached from any individual members of the union, making each individual interchangeable with regard to the application of the law.
> The trait of whom you choose as a partner.
Prohibition of poly-marriage has nothing to do with whom you choose as a partner. There is no whom, the only factor is how many, a quality completely detached from the qualities of any individual.
> The trait of the structure of your union.
The structure of one's union is not a trait of an individual.
The difference is even more obvious when you ask yourself what type of information is necessary in order to enforce prohibition of either type of marriage. Here's a thought experiment that makes the difference even more explicit. Given the pseudo-schema below, consider the difference between the queries you'd need to write in order to return all poly unions vs all gay unions.
persons_table: person_id, name, age, sex
marriage_table: marriage_id, person_id
> The difference is critical as it pertains to discrimination against a certain type of persons.
How do you define "type"?
> Prohibition of poly-marriage has nothing to do with whom you choose as a partner.
Does it matter? It's still hindering people from being in the relationships they want.
> There is no whom, the only factor is how many, a quality completely detached from the qualities of any individual.
There is a whom: People who have multiple partners. The important quality of those individuals is the fact that they want more than one partner.
> The structure of one's union is not a trait of an individual.
If it were not a trait, then we'd see no preference one way or the other, and yet we do see preference; preference strong enough to lead to prohibition.
Your argument is absurd. My point is really very simple. Poly-marriage is a function of the marriage structure while same-sex marriage is a function of the sex of individuals.
persons_table: person_id, name, age, sex
marriage_table: marriage_id, person_id
If I drop "marriage_table" it is impossible to identify any poly-marriages in the database.
If I drop "persons_table" it is impossible to identify any same-sex marriages in the database.
No amount of pedantic quibbling will allow you to escape the fact that poly-marriage is defined by the TOTAL NUMBER OF PEOPLE in the marriage, it doesn't matter how many partners an individual prefers, the only question is the number of people, not WHO THEY ARE.
I understand that you're trying to suggest that "number of people I want to marry" is the individual trait that factors into the prohibition of poly-marriage, but that argument is disingenuous as well tautologically absurd; it's akin to saying "speeding laws target people who like to speed" which is obviously true but misses the point that the law is based on your actual speed not on your personal predilection for speeding; it's not discrimination because it's not about you.
I don't have to know anyone in the car to know that a car moving at 70mph in 50mph zone is illegal, just like I don't have to know any of the people in the marriage to know that a 3 person marriage is illegal.
> No amount of pedantic quibbling will allow you to escape the fact that poly-marriage is defined by the TOTAL NUMBER OF PEOPLE in the marriage
Obviously.
> it doesn't matter how many partners an individual prefers, the only question is the number of people, not WHO THEY ARE.
I should think that peoples' preferences and drives for partnering and sex does in part define who they are.
> it's akin to saying "speeding laws target people who like to speed" which is obviously true but misses the point that the law is based on your actual speed not on your personal predilection for speeding; it's not discrimination because it's not about you.
It's a prohibition against specific conduct, much like the now defunct prohibition against homosexual sex. One should not stop at the law itself; one must examine the law's effect on those negatively impacted vs everyone else.
The legal ramifications are the same as well: Property rights under the union, taxation, child guardianship, visitation, protection upon dissolution, and wills.
So the child of a divorce has to move between more than 2 homes now? A wealthy man can split his income with more than 1 wife that doesn't work?
It's not the same, it's qualitatively and quantitatively different. Is there a limit to the number of members? Can you join a union halfway through? Can you leave a union without dissolving it? Those questions don't come up under 2-person unions.
I'm not sure why you keep harping on the specifics of the rules. Any different arrangement will always have different specifics, even if the fundamentals remain the same (which they do in this case).
What is the difference between specifics and fundamentals? Aren't the legal ramifications the fundamentals? I mean, it is a legal institution that we are talking about, right?
I'm not saying you can't have a loving and intimate relationship between 3 or more people, I'm just saying same-sex marriage is much closer to heterosexual marriage in terms of legal ramifications because it's only 2 people. Lines and triangles are both geometric figures, but that doesn't make them fundamentally the same.
You said the difference is academic. No, it requires significant changes to the legal framework of marriage.
Consider the following programs:
1) A program that allows a PC to talk to a Mac
2) A program that allows a PC to talk to a PC.
3) A program that allows a Mac to talk to a Mac.
4) A program that allows any number of Macs and PCs to talk to each other all at once.
The point is that given 1, it's pretty straightforward to write 2 and 3. 4 is a just a lot harder to get right. I'm not saying it can't be done, but the difference in the patches required to support 2, 3, and 4 is not academic.
Laws are pretty similar to programs, and there's a big jump in complexity going from 2 of something to 3 of something. Anyone that was actually poly would know this from all the honesty, negotiation, and ground rules that are required to make it work.
These people are part of government, so that's roughly equivalent. Different parts of government disagree about the details, but it appears they all agree that the government should get to decide who can get married.
How does polygamy benefit the state? It's a serious question.
With regular two-people marriage, you're roughly giving almost everyone a shot at finding a partner for marriage. This means you don't get large roaming populations of one sex or the other without any hope of finding a partner, and all the problems that can bring (see China). Those people will not be able to participate in the state-approved stability that marriage can bring.
Gay marriage is actually positive for the state in these respects, since it expands the number of people who can participate in the current framework. Polygamy is much more complicated at scale, and I think you'd need to find solutions to many other potential problems before you could convince the state to accept it.
I would bet the biggest opposer to divorce will be the INS ... imagine the Green Card businesses that would enable! After all, it should make little difference to INS whether people choose to have their multiple marriages in series or in parallel.
Polygamy is a deeply troublesome arrangement, with a storied history of abuse. It has been steadily abandoned and outlawed as societies grant more legal rights and self-determination to women.
There is simply no way to legally recognize poly* relationships under the law in a way that resembles binary marriage.
In Europe in the modern era, the trend is more in the other direction: as society gains more respect for both men and women's choice of sexual self-determination, instead of being fixated on traditional opposite-sex, pair-courtship rituals, polyamorous relationships are becoming more accepted. They were once strongly disapproved of and even illegalized, but are now increasingly being seen as a legitimate personal choice. On the activist side, many (most?) LGBTQ organizations also include poly activists, especially the organizations which have a more left-wing flavor.
I think the more likely path than legal polygamy, though, is to expand a more flexible set of legal arrangements for families, as a replacement for traditional marriage being the legal framework. The fact that a huge proportion of couples here (Denmark) no longer get married is already forcing that for another reason. Since many families which otherwise look traditional — long-term cohabitation of an opposite-sex couple, jointly raising children of which they're parents, etc. — don't get married, marriage as the organizing principle of families is becoming less relevant, so the law already has to start handling things differently.
Same in Portugal. People I know are already doing alternative celebrations to regular marriage, influenced in part by the cost - since marriage celebrations are expected to have certain elements (catering, dresses, etc) which these celebrations do without.
"De facto unions" have existed (for both hetero and homosexual partners) for more than ten years already, and have many of the same rights as married couples, including inheritance, refusal do testify in court, etc.
Monogamy also has a storied history of abuse. Up until the 1970's it was perfectly legal for a man to rape his wife. This does not make it fundamentally impossible for healthy and consensual monogamous relationships to exist, and neither does the supposed behavior of 19th century Mormons make it impossible for healthy and consensual polygamous relationships to exist.
What behavior of 19th century Mormons are you referring to? The majority of polygamous relationships were about taking responsibility for widows and their families. Mormons were violently persecuted and polygamy was a support mechanism.
Yeah, I edited it to "supposed behavior" because I don't really have a good basis of knowledge about 19th century Mormons. It's just that, fairly or unfairly, they're usually the ones held up as an example of how polygamy is supposedly abusive and sexist.
Since it's about the civil aspects, same sex marriage is the logistically easier topic.
Take taxes: tax codes cover singles and pairs, optionally with children. Same sex marriage doesn't change much here, polygamy does. The same for lots of other provisions that are affected by civil unions (no matter what they're called).
It can be done, but it's a lot more work (and as such, a lot more legal attack surface) than declaring "we don't care anymore for the sex of the pairs' members".
Polygamy is a Christian institution. It was pointedly prescribed in the old testament. Modern anti-polygamists will argue that the old testament prescription was a matter of necessity, and that new testament language (particularly Paul's) prescribes monogamy, but to my eyes the new testament's position is pretty casual, while the old testament's is quite strong.
I think that's the wrong argument to make. There were a lot of things said in the Old Testament that aren't considered by most Christians to be applicable to them. The "Old Covenant" was, as the Jewish maintain today, between God and the Jews. For most Christians (more specifically, Catholics and several other groups), the laws in the Old Testament ceased to be valid when Jesus proclaimed the way into Heaven.
That said, it is true that the bible doesn't disapprove of polygamy. The Old Testament is filled with examples of God condoning it (Lamech, Esau, Jacob, Gideon, Solomon... The list of men with multiple wives goes on and on - God even gave Saul's wives to David), and the New Testament has a few "mentions", so to speak: Paul's letter to the Corinthians, which explicitly says it's his opinion and not law, Ephesians, and a few others that are suggestive of opinion and not law. But honestly, appealing to biblical authority is fraught with oppositions that focus on the numerous inconsistencies in the bible.
I believe that polygamy is a personal and/or moral belief, and while I'm personally an atheist, and personally do not have an interest or stake in debating the morality or religious support of it, I recognize that there are potential and actual inconsistencies with how rights and responsibilities are handled with respect to polygamists, and hope they're able to find the path to equality.
Selfless love knows no bounds, frankly. It's the selfish ones that need to find humility before they find peace.
> "For most Christians (more specifically, Catholics and several other groups), the laws in the Old Testament ceased to be valid when Jesus proclaimed the way into Heaven."
Those Christians may have a bit of a quarrel with Jesus himself:
Think not that I am come to destroy the law, or the prophets: I am not come to destroy, but to fulfil. For verily I say unto you, Till heaven and earth pass, one jot or one tittle shall in no wise pass from the law, till all be fulfilled. Matthew 5:17-18
One of the most important verses in the bible. It holds the tension between the judgement brought by the Old Covenant on the one hand, and our salvation and freedom in Christ on the other. Although its complexities are rightly subject to debate, there's simply no room to claim that the entire Old Convenant is invalid in Christian theology.
> "appealing to biblical authority is fraught with oppositions that focus on the numerous inconsistencies in the bible."
Polygamy absolutely was prescribed, in very strong terms, in the form of levirate marriage:
If brethren dwell together, and one of them die, and have no child, the wife of the dead shall not be married abroad unto one not of his kin; her husband's brother shall go in unto her, and take her to him to wife, and perform the duty of a husband's brother unto her. Deuteronomy 25:5-6
And no, it is not universally portrayed as dysfunctional. Dysfunction appears when the subjects disregard specific instructions regarding marriage and sex, in the midst of polygamous relationships that are explicitly allowed by God. E.g., David's adultery, and Solomon's marriage to women from outside of Israel.
Um, yes it is. Levirate marriage is pretty simple; if a woman dies childless, her husband's brother is obligated to marry her so that she has a chance of bearing children, even if the brother is already married.
And for some entertaining context, go read the rest of Deuteronomy 25:5, where it says how the brother should be punished if he refuses the marriage.
> "Every instance of polygamy has a bad ending in the Bible."
This is simply not true. Tell me where Lamech's or Rehoboam's marriages caused a bad ending. And as I said above, King David -- perhaps the most famous of polygamists -- is never rebuked for his marriages. The Bible makes a very clear point of rebuking him only for his adultery:
David did what was right in the eyes of the Lord, and had not turned aside from anything that He commanded him all the days of his life, except in the matter of Uriah the Hittite. 1 Kings 15:5
> Polygamy is a Christian institution. It was pointedly prescribed in the old testament.
Correction: "Christian" refers to Jesus Christ, which does not appear in the old testament. Catholics, Ortodoxes and many protestant churches are against polygamy.
I'm not sure how to respond to this. Have you noticed that every complete Bible contains the Old Testament, including the Pentateuch in its entirety? Old Testament law and prophesy is woven deeply in the fabric of the gospels and of Paul's letters.
And while most modern churches have chosen to interpret Paul's prescription for monogomy strictly, some Christian churches and cultures continue to embrace polygamy.
> Have you noticed that every complete Bible contains the Old Testament, including the Pentateuch in its entirety?
Yes, I already had noticed this.
> Old Testament law and prophesy is woven deeply in the fabric of the gospels and of Paul's letters.
Just for curiosity, have you ever happened to actually read the Bible? There are plenty of prescriptions in the Old Testament that are not followed by Jesus. Jesus presented himself as "The Truth", and he often said he was giving "a new commandment". To rest on Saturday, to stone an adulteress, to be forced to marry your brother's widow have never been Christian commandments. And polygamy enters in this list.
The fact that for a small amount of time a small minority of Mormons (a small minority in the Christian world, less than 1% of the total) have accepted polygamy does not make this practice "Christian". Otherwise, if one follows the same line of reasoning, encyclopaedias should classify deers as "omnivorous", because in extreme conditions there have been reports of deers eating frogs and small mammals...
So then, if I understand you correctly, polygamy is in the same category as resting on the Sabbath? It's good to know that it's not forbidden, even though we're no longer obliged to do it :)
Saying it has deep roots in America is disingenuous, because Mormonism is the only religion, in a well defined geographical area to do so. There's a lot more to American religious (and demographic) history than Mormons.
EDIT: And hasn't been a part of Ashkenazi Judaism for a millenium at least.
Any relationship grouping that is greater then 2 requires very extensive legal changes before it becomes practical to implement. The law is incapable of addressing the possibility of a marriage which can outlast all it's original participants, for example.
The majority opinion in the comments here seems to be that polygamy would be OK. So is there anywhere where you would draw the line? Incest? Underage? Anything at all?
There was a time when homosexuality was considered morally wrong by the majority of people in this country. Polygamy was also considered wrong, as was incest, marrying children, bestiality, and probably some other things that I'm forgetting.
So my question is this: Given that the majority of people here seem to be so liberal-minded that they consider (consensual, non-coercive) polygamy to be fine, is there anything that anyone will still look at and say "That's actually morally wrong"?
Polygamy makes no sense from a power structure standpoint, it is inherently unequal. The man (generally) gets X women and each woman gets one man (the same man). If polygamy meant a web of relationships, where everyone was equally married to everyone else, that would be conceptually more fair, but as is, the power structure of polygamy as defined by the only religious sect with much influence in the US is an inherently less than equal partnership.
But the idea that "the Constitution guarantees a right to same-sex marriage" is pretty laughable.
Does anyone really believe this right was in the Constitution for 250 years, only to be discovered recently? In reality public opinion and culture changed, and 5 justices decided to change the law.
> Does anyone really believe this right was in the Constitution for 250 years, only to be discovered recently?
That seems to be the case to me. I'm not completely familiar with US history, but don't you think the right of black people to be free and equal to the other people was already written in the constitution 250 years ago, for example? Or women's suffrage. It just took a while to actually recognize it.
Homosexuality was legalized in France in 1791 according to the same set of ideals, during the same movement that gave birth to the US constitution. Slavery was abolished as well, and women's suffrage was discussed, because it was well recognized that these were all questions of equality. It isn't a stretch to think that the US constitution would also fundamentally allow homosexuality and forbid discrimination according to sexual orientation (and therefore allow gay marriage as well).
I'm not disagreeing with your general premise that the fundamental right for equality is the basis of the constitution and therefore equal marriage is implied by it. But to your points:
"the right of black people to be free and equal to the other people" (specifically the abolishment of slavery)
Is made explicit in the 13th amendment[0]
And "women's suffrage" is the 19th amendment[1]
So for both of your examples, these things are explicity added to the constitution.
Making something explicit makes it clear for everyone, but you could easily argue the rights of black people and women were written into the Constitution from the start- just in less obvious ways.
That's one of the court's jobs, after all, to evaluate complex or difficult situations and laws where it is not immediately clear what the law says. It reminds me of especially tortured and opaque code. You can't see on the surface that foo=bar, but after a long and arduous process of evaluation you discover- lo and behold- foo=bar all along. Or even more difficult, you discover that foo=1 implies bar=2.
These amendments were added via a process built into the Constitution to allow changes to be made, because the folks writing it knew they couldn't account for everything.
But furthermore, the specific wording of the constitution may actually have been intentional insofar that Jefferson may have wanted it to be clear that all people have equal rights. He obviously couldn't singlehandedly change the minds of everyone at the time, but the idea that he intentionally left the wording vague enough to include everyone is a valid idea, I think.
> don't you think the right of black people to be free and equal to the other people was already written in the constitution 250 years ago, for example?
No, of course it wasn't. Slavery was common and accepted when the Constitution was written, and the Constitution didn't say there was anything wrong with it until it was amended in 1865 with the passage of the 13th Amendment.
Since the decision rests on the 14th Amendment, it's only about 150 years.
But yes, the right was there all along, but the implications weren't realized before now. It's generally been accepted for quite a while that the government can't discriminate on the basis of a person's sex, but for some reason the obvious implications for marriage haven't been accepted until now.
Sure, the people who wrote the 14th Amendment didn't intend it to say this. But that's because they had a great deal of implied context that didn't go into the law, like "women can't vote," which no longer applies. But if the context disappears and the law as written pretty clearly says X without that context, are we supposed to ignore that?
The dissenting opinions make that point. While I support gay marriage, the Supreme Court overstepped their authority in this case. The Legislative branch writes laws, not the Judicial. Public opinion on the definition of marriage should change future laws, not past laws.
It's a slippery slope when you allow a bunch of unelected middle aged and old folks gather in a room and decide what is good and what is not for the rest of the population.
The US political system is a big joke in my opinion.
Sure! Like I said the whole US political system is a big joke but at least lawmakers can be held accountable theoretically for their voting decision to their electorate but to whom these appointed judges answer actually?
No, they believe this right was in the Constitution for 147 years (since the 14th amendment was added) and was only recently discovered. To be fair, the clause in question only says that they can't "deny to any person within its jurisdiction the equal protection of the laws" which is extremely vague, so it's inherently prone to being reinterpreted every few decades.
The Constitution guarantees that the government will be fair to citizens, and places certain restrictions on its powers. It does contain any rights in it at all. Rather, it assumes the pre-existence of rights, and works from there.
When it comes to rights, the onus is on the side of proving something is NOT a right. This goes all the way back to the founding of the nation and is enshrined in the 10th Amendment.
So yes, people have a right to same-sex marriage. Why? Because they want to. That's enough in the United States. If the government is going to intervene to prevent that, it needs to demonstrate a compelling reason to do so. No one has demonstrated such a compelling reason when it comes to same-sex marriage.
It takes a lot of imagination to think that the founders had any vision of the laws that the commerce clause would be used to justify today.
It took me a long time to realize that whether or not the constitution was designed or intentioned as a "living document" is completely irrelevant. What matters is how the process actually works today, and it works as if the constitution is a living document, therefore it is a living document. See also: Duck typing.
They needn't envision those laws, just as they needn't have envisioned automobiles or the internet. You could think of the Constitution establishes axioms. Just like math, what arises from those axioms can be boundless in complexity, but that has no bearing on the axioms.
I don't think that same-sex marriage rights were encoded in the Constitution or thought of as being rights by its drafters, but that doesn't matter -- the same was true of the interracial marriage rights granted as a result of Loving v Virginia. Your method of narrowly interpreting the Constitution is not shared by the court.
In my lifetime, I think this is the social issue that has seen the most positive change.
As a kid, gay people were practically lepers.
Eleven Years ago, Dave Chappelle just outright said "gay sex is just gross, sorry it just is", and it was considered funny and acceptable. (Not harping on him specifically, just pointing out what it was like in 2004)
Seven years ago prop 8 passed, if barely with some caveats about lack of understanding.
And now? SCOTUS upholds gay marriage and it's socially reprehensible to mock homosexuality. It's a strange and very positive feeling watching a country's world view shift like this.
You can't just pull a quote like that out of context. Chappelle said the "gay sex is gross" thing twice, once was in the black bush character (https://www.youtube.com/watch?v=EoDpghAaXT4) and the other was when he had a white girl sing his thoughts:
"Gay sex is gross; sorry, I just think it is. (gets another card) Unless, of course, they're lesbians. (gets another card) I like lesbians. (gets another card) I like lesbians."
Which is super tame compared to a lot of the other things Chappelle said back then, or even Louis CK says nowadays.
Dave Chappelle is a comedian, they say stuff like that all the time, it's part of their job. If you are going to quote somebody (specially on these issues), I'd recommend not to quote a comedian.
Quoting a comedian as a means of reflecting what's popular or at least socially acceptable is an appropriate and accurate way to say "at one point in recent history, it was socially acceptable to say demeaning things about gay people."
Michael Richards is a comedian, and made anti-Semitic remarks that resulted in a significant backlash. Again, looking back this is a good indication of someone saying something that was NOT popularly acceptable.
In this case, the quote omitted the context of archetypes and specific people, namely George W. Bush, that Chapelle was very obviously satirizing. I say very obviously, because it wasn't a nuanced depiction: the skit was literally described as him being black Bush, and he was in a suit behind the POTUS podium, addressing the media.
Removing the context from that and hitting Chapelle for it is just a convenient target.
It's still acceptable for a comedia to say to say demeaning things about gay, black, indians, asians, jews, whites, WASPs etc -- including rape victims, terrorism survivors, heroes, politicans, babies, etc.
That's what comedians do. Listen to Louis C.K (or anyone, really).
>Michael Richards is a comedian, and made anti-Semitic remarks that resulted in a significant backlash
Depends if he made them as part of a comedic routine or not. And actually even when part of a routine, depends if they were told as genuine preaching / ranting, or just for the comedic effect / exaggeration / black humor of it.
OT: It wasn't anti Semitic remarks that got Michael Richards in trouble. Michael Richards went on a massive tirade saying the N-word repeatedly after he felt that a black patron was being disrespectful.
Those lines were part of Chapelle's skits, they were clearly a part of a joke. Michael Richard's rants weren't a part of a show or routine, it was just him shouting at a patron. It's not because he made comments about blacks, jews, or any other race. It's because there wasn't any satire to his statements, and they seemed genuine (or it appeared that way at least).
I did think about that a bit. That's part of why I added the disclaimer. I included it more because I was watching it this weekend, saw that bit, and thought, "That would be a really unacceptable thing to say today, but back then it was considered funny." Edit: And you're right, comedians are on a different standard. Sorry, forgot to include that.
If you think that would be an unacceptable joke for a comedian to say today, you should watch the comedian Daniel Tosh's show Tosh.0 on Comedy Central for essentially 30 minutes of unacceptable humor.
Any straight guy will, if given the choice, avoid scenes of man on man sex as much as possible. They might say it's "just not my thing" out of politeness or tact but watch what they do. When Chapelle said it it was funny because everyone watching can relate and it's a tension reliever to hear what you've been bottling up is actually true. Much comedy works this way.
Interesting concept, that sexual orientation is something we believe is ingrained, but things we find sexually repulsive are fluid and subject to change.
Your reasoning is yours alone and the anecdote can be easily hand-waved away: perhaps you're bisexual or lean more heavily towards homosexuality than most heterosexuals, thus find it less repulsive.
As for not believing in sexual repulsion - is this in regards to gender or in general?
I don't think there's sexual repulsion. Either you are repulsed by something or you are not, whether it's sexual has nothing to do with it. And what we are repulsed by is often conditioned
I think what you're talking about is very different from what my original comments parent talked about, though. Sure, you can have turn-offs. Although what society finds unattractive is also hugely based on culture, just like what it finds attractive.
A small change makes your sentence more truthy: "Many straight guys will".
This isn't just a quibble. Public safety gave up using "gay men" because so many men do not identify as gay but do have sex with men. Thus, MSM is now used instead.
You start with the mental model of sexuality of three seperate and distinct groups - straight, bi, and gay. You then use that mental model to make a statement "any straight guy will avoid". But because your mental model is wrong that statement is also wrong.
You have absolutely nothing to support your statement apart from your own gut feeling.
>Eleven Years ago, Dave Chappelle just outright said "gay sex is just gross, sorry it just is", and it was considered funny and acceptable. (Not harping on him specifically, just pointing out what it was like in 2004)
iirc the bit you're referring to was how saying outrageous things is viewed as acceptable when a white woman does it.
In the black Bush piece he said 'and no gays settling down!' to poke fun at the GOP.
DADT was in 1994 IIRC? This idea that gay people were lepers 10 years ago is false, 21 years ago the military was already doing everything it could to put off the pressure of allowing gays in the military (and DADT was their compromise).
This is a generational thing, this latest is but 1 victory in a long procession of victories. To pretend otherwise is balderdash.
I still think that gay (two men) sex us gross... or any sex with a man. Which is why I don't engage in it, but I'm pretty grateful that about 50% of the inhabitants of Earth enjoys it!
If we're basing revulsion based on cost of diseases spread, vaginal sex would also have to be considered disgusting. Actually, you'd have to view quite a lot of non-sexual activities with revulsion as well based on that premise. Sorry, but I don't believe it's any more gross or decent than any other consensual sex act.
I say that a bit tongue-in-cheek but it definitely helps to have gay culture and gay icons just out there in the world, melded seamlessly with the rest of society. This includes things like trashy teen comedies and musicals and what not.
Having equal marriage rights is just one more step in the right direction of having a more tolerant, loving earth society.
> it definitely helps to have gay culture and gay icons just out there in the world, melded seamlessly with the rest of society.
On one hand I agree, but it's never been sufficient. There have been gay icons for a long time (probably forever); Oscar Wilde springs to mind, and Alan Turing (though I don't know if he was well-known to the public). And even with their status, they were still persecuted and ruined.
I think icons like Oscar Wilde are distinct from the root of why Glee was part of LGBT acceptance developing.
When we watch a show, we think of the characters as people. It helps eliminate the problem of people who don't think they know any gay people. Maybe you don't have a cousin or uncle who's gay, but that guy in Glee was gay, and he seemed okay right? Icons don't trivialize things in the same way, because by their nature they're viewed as different.
But it's another thing to be on Fox (the television channel) and on top of mind for young people. Gay is just an adjective to them, not this twisted idea with hateful baggage. Oh, she has red hair and he's gay. Moving on.
It's not really the gay icons as much as it is the gay banality. Having gay just exist in plain sight.
I'm not sure what to think. Oscar Wilde was, as I understand it, exceptionally well known, the superstar of his day. He might not have had TV to broadcast him, but celebrity existed before TV. Also, there long were celebrities who were black, especially in music and sports (e.g., back in the 1930s, Louis Amrstrong, Duke Ellington, and Joe Louis), and yet racism persisted. Also, everyone knows gay people.
On the other hand, I recently saw a survey of Americans that tried to determine how their personal relationships with gay people affected their views of gay marriage. IIRC, around 30% responded they didn't know anyone who is gay. That said it all! (EDIT: I should be clear: My point is that there is no way 30% don't know a gay person; I doubt that's true of 1%. They are just in denial.)
EDIT: I did not mean to cause a trainwreck below this comment. It was the quickest way on mobile to communicate "all big problems are tackled one task at a time".
Please note that the HN community takes a rather strict approach when moderating comments that contribute noise to the conversation. "Nice article!" comments are routinely downvoted. As is sarcasm, witticisms, memes, references and other styles of comments that occur frequently but do not add information to the discussion. It's a knowingly doomed attempt to hold back the flood of noise that covers Reddit.
not to mention how hard it is for gays to land a job in early years education. So backwards! The worst are these mothers. Once they see a male working in a Child Care Center there is going to be lawsuit, that's for sure. Gay male employee at Child Care Center? I hope there will be some progress too!
OK downvoters [EDIT: previously parent post had been grayed-out, now it appears this one is?], do you really not know that this is a thing? Lots of mommies and daddies don't want little Jenny and Billy looked after by a dude. I don't know what being gay has to do with it, except perhaps 'taki1 is telling us that gay dudes are more likely to want to work in child care than straight dudes are. Maybe that's true?
Each person, whatever their sex is, should have the right to work at a place if they are as qualified as other candidates.
If there's a lady who wants to land a job at Child Care Center, and - let's say a Black transgender gay communist - they should have exactly the same chances. But these horrible sexist mothers will allow only other women, preferable white, to take care of their kids! Males stand almost no chances, not to mention race minorities, not to mention sex minorities.
This is a true middle-ages dramatic situation of these gays. And again - I'm talking on the individual level. Even if only one gay out of the population of 20% gay in the US currently wants to have a job at a Child Care Center he should have exactly same chances as a single white straigt woman.
Wouldn't you agree? I hope you are not a xenophobic racist homophob because that what you are if you give preference to some white woman working at a Child Care to Black Transgender Gay (fe)male.
It seems we agree. I was just responding to the (it-seemed-to-me) reflexive downvoting of your previous comment, possibly because people didn't realize that lots of parents are homophobic. I know lots of parents, and they really are homophobic in this way.
I've never really given credence to the people that suggested a ruling would be a slippery slope. However, after reading the opinion for myself, I can see how the court's stance on marriage (opposite-sex and same-sex) can now be extended to polygamy and incest. I understand the need to define it as a fundamental right within the context of this ruling, but it seems that some of the wording opens the way for other marriage relationships that are not explicitly defined in the court's opinion.
Incest - maybe. There's a clear harm involved there (inbreeding depression) that's much more substantive than anything used to argue against gay marriage.
Polygamy - We probably will revisit our stance on polygamy in decades to come. Historically it's been used in a way that's profoundly imbalanced towards women (i.e. almost exclusively polygyny), but it's not hard to imagine a future where that's not the case.
The risk to offspring is definitely higher with certain genetic diseases than with relatives.
The case against incest can be made on that base when eugenics are re-established and codified into law. As-is the only argument that holds water is "yuck" - one that same sex marriage proponents should be vaguely familiar with.
> Historically it's been used in a way that's profoundly imbalanced towards women (i.e. almost exclusively polygyny)
Any biologists care to chime in on this? It cuts both ways, and is more complicated than that.
I don't understand how polygamy is imbalanced toward woman. They get a stake of the alpha's attention and him providing for them. In the current system, it's AFBB. The beta male foots the bill for alpha seed.
> However, after reading the opinion for myself, I can see how the court's stance on marriage (opposite-sex and same-sex) can now be extended to polygamy and incest.
Good. If only they (or society) would decide that no consenting people need permission from anyone else to call themselves "married."
> no consenting people need permission from anyone else to call themselves "married."
I agree, but nobody did needed permission to call themselves married before today. If we haven't been referring to gay couples as "married" before today, it has been for political reasons, not legal reasons. To wit,
- Gay couples refused to call themselves "married" because doing so would have detracted from impetus to change the legal situation (which actually does change their real rights), and
- People opposed to gay marriage refused to call gay couples "married" because doing so would confer legitimacy on gay relationships.
The real issue here is about the rights and responsibilities that are associated with marriage, and while I'd like people's legal ability to voluntarily enter into those arrangements expanded, I'm not sure they should be expanded without bound.
> The real issue here is about the rights and responsibilities that are associated with marriage.
Indeed, that's my point. Those rights and responsibilities should not be legally associated with marriage. I would prefer that one be able to live with whomever one pleases, arrange for hospital visitation and medical decision making with whomever one pleases, share bank accounts with whomever one pleases, et cetera.
If you are so intent on redefining/bastardizing marriage, while we're at it, please take a look at family bonds and friendships and see what we can come up with "novel" and "progressive" ideas to add to the conversation.
Incest is legal in France since 1810 - and the new law from 2010 that seem to forbid it really doesn't. It's some additional protection law for minors.
As far as I can tell, it didn't lead to the entire French population growing an additional eye (and I doubt that incest rates are extraordinary in the first place), so the impact of lifting that ban probably isn't all that bad.
Agreed. The "slippery slope" arguments always seemed weak to me, yet it didn't take long for polygamy comments to pop up here. So seems like they weren't that weak after all...
This talk about "church's definition of marriage", etc. is a red herring, and just a couched way of saying "we don't like homosexuality and homosexual behavior".
I got married in India. In a ceremony presided over by a local priest. There was no "church" involved. But guess what? No Christian here (in the US) has ever doubted the authenticity of my marriage.
And then I got divorced in the US. The courts here had no problem recognizing my marriage, even though it was performed in some other country, by some unknown religious authority. The officials had no hesitation in breaking up this marriage. Why don't we require the Church's blessing to break up a marriage (I am aware that Catholics have a certain process of appealing to the Pope, but not all churches do)?
If you don't support the idea of the government getting involved in marriage, you shouldn't support the idea of government-approved divorces either! Go to your church and get a divorce!
One of the interesting thing is how severe disagreements are between the supreme court judges[1]. You might think these judges are debating with cold logical arguments and finally either understand other person's argument or be able to convince others of theirs. Instead what we are seeing is judges literally and personally attacking other judges in same panel and accusing them to derail the very constitution and democracy they are expected to protect. Can they make any ore serious accusations? It's also very interesting that judge votes were highly predictable based on their political leanings and which administration appointed them. This just boggled my mind. First, why we should allow any person strongly conforming to any political ideology as a supreme court judge? Why a political leader who almost always have represented as head of certain political ideology be able to even appoint a supreme court judge?
I'm a straight conservative (more fiscal than social, and sure as hell not Republican any more), and my reaction to this is: "meh". The writing has been on the wall for a while now, and anybody surprised by this hasn't been paying attention.
Any social conservatives on HN -- that is to say, both of you -- should keep in mind that if you're worried about how this affects the sanctity of marriage, that institution has long since been sullied by a) allowing government to get involved with it, b) easily-obtainable divorces and c) that whole Henry VIII business. Same-sex couples can't possibly do any more damage than that.
Of the threats to American culture or even Western Civilization as a whole, the SSM boogeyman pales in comparison to a feckless electorate, unaccountable government with Big Brother aspirations, crushing debt and even Islamic extremists.
That's why my reaction is "meh": as a "problem", SSM isn't even on the radar.
I guess we found each other. The things that irritate me the most is that people believe that marriage is a right. It is not. It is a government granted legal status privilege. The privilege grants those recognized as married numerous benefits. Now, with that said, I can't see why allowing any two consenting adults who wish to extend the government recognized benefits to each other should be infringed. One question though is, what benefit does the state/government gain from [recognizing] marriage? I think the quickest and easiest answer is that a) two people sharing and taking care of each other is beneficial [to society] and b) should a divorce occur, the state can get involved ensuring that a[n ex-]spouse is treated fairly and taken care of.
ADD: Also, people keep mixing love and marriage. While the two often go hand in hand that isn't always the case.
Marriage is not about love. It is about property. The government/state doesn't give two flying ducks about whether two people get married because they love each other, are in love (infatuated) with each other, or just like each other. Love is not required to get married.
Marriage involves determining and transferring property rights (before, during, and after a marriage).
A marriage license and a state recognized marriage is a three party agreement. It's an agreement between the two spouses and the government. It gives consent to the government to arbitrate marital issues and in return the government gives benefits to the individuals getting married.
ADD: Due to a marriage being a three party agreement, state recognized polygamy gets really complicated really fast, especially when multiple states might be involved.
About polygamy: If I can share a company with two other founder, share its money and profits, share the building, etc. why can't I do the same thing with my private life if I want to? Instead of dividing by two, you divide by three, four... sixteen... why not?
My best response is, because currently one of the parties (the state) to the original agreement doesn't want to nor currently agree to allow that? So I suppose if the state changed their laws and allowed it then it would be possible. My assumption is that the first state that is party to the first marriage would, in its best interests, require that all subsequent additions to the marriage be under that state and only that state.
ADD: Adding a joint tenant to an agreement can get complicated. Some current joint tenants (the state?) might not wish to dilute their rights?
ADD: More thoughts. The ADD above is poor reasoning. You can currently setup an organization with many people as you describe above. With marriage, what's different about a marriage than a company or business? Perhaps the state doesn't care to get involved in trying to determine paternity for children when/if things dissolve. To prevent potential future complexities the state opts to avoid them.?
Makes sense when you remember that the first point of mariage was for children. Whose children is it if there are 4 people in the mariage? The biological parents? What if the biological parents split up and you end up with only the two remaining non-biological parents. Do they keep the child? If they were all equal as parents except... argh. I give up. My head hurts. I am happy not to be the one who makes laws.
> That's why my reaction is "meh": as a "problem", SSM isn't even on the radar.
I realize I'm approaching the question from a different angle than you are, but I want to point out that it was a very big problem for gay and lesbian Americans and their loved ones.
"No union is more profound than marriage, for it embodies
the highest ideals of love, fidelity, devotion, sacrifice,
and family. In forming a marital union, two people become
something greater than once they were. As some of
the petitioners in these cases demonstrate, marriage
embodies a love that may endure even past death. It
would misunderstand these men and women to say they
disrespect the idea of marriage. Their plea is that they do
respect it, respect it so deeply that they seek to find its
fulfillment for themselves. Their hope is not to be condemned
to live in loneliness, excluded from one of civilization’s
oldest institutions. They ask for equal dignity in the
eyes of the law. The Constitution grants them that right."
Strictly speaking it means the laws against gay marriage were themselves illegal. (As with any law deemed unconstitutional.) It's a matter of word choice to say "gay marriage was always legal" versus "anti-gay marriage laws were always illegal". There's some semantic difference between the two, but I'm not sure what the difference is from a judicial standpoint.
That's basically correct. It's always been legal, and efforts to stop gay marriage have basically been efforts to narrow the scope of this already legal right.
Yeah, I'm still slightly pissed they basically waited until the majority was clear before they'd rule on the matter. Its another clear sign our Judiciary is really just as political as the politicians are, even if no one says so openly.
> As late as October, the justices ducked the issue, refusing to hear appeals from rulings allowing same-sex marriage in five states. That decision delivered a tacit victory for gay rights, immediately expanding the number of states with same-sex marriage to 24, along with the District of Columbia, up from 19.
> Largely as a consequence of the Supreme Court’s decision not to act, the number of states allowing same-sex marriage has since grown to 36, and more than 70 percent of Americans live in places where gay couples can marry.
> Yeah, I'm still slightly pissed they basically waited until the majority was clear before they'd rule on the matter. Its another clear sign our Judiciary is really just as political as the politicians are, even if no one says so openly.
I'm a strong supporter of gay marriage, but I'm glad the Court waited until the consensus was clear. At bottom, this isn't a right flowing from the dictates of the Constitution. Nobody in 1789 would have said that gay marriage is a fundamental right. We acknowledge the right today for the same reason we acknowledge many other rights we did not acknowledge then--society as a whole has agreed to recognize the right and bind itself to enforcing it. It is important that the Court not act ahead of society.
I'm also a strong supporter of abortion rights, but I can't help but wonder if in the long run abortion rights wouldn't be in a stronger position today had the Court waited a bit longer for public consensus to catch up before dictating a result.
> At bottom, this isn't a right flowing from the dictates of the Constitution. Nobody in 1789 would have said that gay marriage is a fundamental right. We acknowledge the right today for the same reason we acknowledge many other rights we did not acknowledge then--society as a whole has agreed to recognize the right
Looking at just the legal aspects, in 1789 (and 1776) we did recognize that 'all men are created equal' and equal protection (and due process might apply too). From those rights flows the idea that a right conferred to some, such as marraige, should not be denied to others.
> It is important that the Court not act ahead of society.
I wonder how much of this is due to the Court being unable to act far ahead of society. The Court has no real power of enforcement; for example, when the Supreme Court ruled for Indians whose land was siezed in Georgia, President Andrew Jackson (now on your $20 bill) famously said "[Chief Justice] John Marshall has made his decision, now let him enforce it."
If they rule and are ignored, they lose credibility and influence and gain nothing. I wonder how often judges take than into consideration (especially judges in lower courts, such as municipal courts).
> Looking at just the legal aspects, in 1789 (and 1776) we did recognize that 'all men are created equal' and equal protection (and due process might apply too). From those rights flows the idea that a right conferred to some, such as marraige, should not be denied to others.
That language is in the declaration of independence, which has no legal effect. The Constitution explicitly creates a system where all men are not created equal.
The SCOTUS shouldn't wait on consensus. They don't need that. They need to decide if it is legal or not. If it is not, send it back to Congress to fix. While I agree with the ruling, this court has been doing things clearly outside its purview.
SCOTUS has no police or armies to enforce its edicts. The institution functions entirely on "trust capital." Every time it strikes down some democratically-instituted law, it uses up some of that trust capital. Sometimes, it must spend that capital. But doing it too often erodes faith in the institution, and ultimately, that is the only thing they have.
I'd argue that Citizens United is a great example of that in action. In my opinion, the Court got the law absolutely right in that case. But they used up a lot of trust capital in the process.
SCOTUS has far more than faith. It derives its powers from the constitution, and a constitutional amendment would be needed to destroy it, not merely a lack of faith, and until its destroyed it has the ability to set precedent and make rulings. To say it has no police or armies is simplistic as well, once departmentalization of constitutional interpretation starts occurring, you have a divided nation on the path to civil war. The thought that there wouldn't be Americans willing to take up arms in solidarity with supreme court rulings, and with SCOTUS rulings as their justification is rather naive.
The only time the executive has ignored supreme court ruling I believe was when Lincoln was in charge, and well, to say the nation was divided at that time would be an understatement.
Congress is not supposed to be a consensus-enforcing machine. The Supreme Court is supposed to make sure the words of the Constitution and the words of the laws mean something. If they don't, then the country is ruled by people, not by laws.
The Supreme Court is a literal oligarchy - it's 9 people who are accountable to no-one. The Senate is a more democratic body, since they can be held to account by voters.
I don't know if this was meant to be a joke but it's rather preposterous. Justices do not make laws, they interpret and apply them, and must do so while being rationally bound and yes accountable to laws and precedent under the framework of common law. Judicial activism is a pejorative term for good reason: they're not there to create or destroy laws. If they did start abusing their power to interpret laws they would be impeached: they actually ARE accountable to congress same as the president.
Also, if the equal protection clause was misinterpreted by the judicial branch, the legislative bodies of the federal and state governments have the power to revise and make it clear that the law was never to be interpreted that way.
> Nobody in 1789 would have said that gay marriage is a fundamental right.
Its marriage. Its a fundamental right.
It doesn't matter if you are gay or straight.
> It is important that the Court not act ahead of society.
That is another way of saying "Yes, the judicial system is as political as politicians."
One of the primary purposes of the Court is to make sure the political majority can't deny equal rights to everyone in the country. The idea they have to wait for that political majority to exist before "giving people" rights is an awful idea.
> I'm also a strong supporter of abortion rights, but I can't help but wonder if in the long run abortion rights wouldn't be in a stronger position today had the Court waited a bit longer for public consensus to catch up before dictating a result.
> Nobody in 1789 would have said that gay marriage is a fundamental right.
That's one of those assertions that relies on present-day society always believing they are more socially advanced than earlier ages, and that society moves forward monotonically in lock step around the world.
In fact, modern American society is a lot more prudish about same-sex unions of various types than earlier societies in Rome, Greece, and China at various times. It's very likely that one could find contemporaries of the authors of our Constitution, in comparable circumstances of economic and cultural development, who thought same sex unions are perfectly OK.
The men of 1789 who wrote the Constitution wrote a document they aspired to. Pretty obviously in the case of slavery, but in many other ways.
They explicitly said they could not enumerate rights. If you think otherwise, I'd like to know what you think of the following:
If someone invented a brain accelerator that imparted god-like intelligence, would you have a right to use it, or would the government grant such a right?
If someone cured old age, would you have a right to access that cure? Or would government have a say in this novel, unprecedented thing?
If someone invented an unbreakable code, would you have a right to what amounts to an uncrackable safe for your "documents and effects?"
If someone invented a personal spaceship, would you have a right to go to space, assuming you could do it without endangering others?
They really waited until they had no choice: they refused to hear all cases until there was a circuit split, then they had no choice but to resolve the split.
RGB specifically addressed why the supreme court wasn't previously hearing marriage cases at that time - they don't generally hear cases when the circuit courts are in agreement. Once the circuit split then they addressed the issue, but only then. In fact the dissent in DeBoer v. Snyder (which is one of the four cases that was combined for the Supreme Court) said "Because the correct result is so obvious, one is tempted to speculate that the majority has purposefully taken the contrary position to create the circuit split regarding the legality of same-sex marriage that could prompt a grant of certiorari by the Supreme Court and an end to the uncertainty of status and the interstate chaos that the current discrepancy in state laws threatens."
I don't know. They had to start by striking down the federal benefits part of DoMA, and then return the issue to the lower courts to build up sufficient decisions (and precedent.) It takes time to do this. Frankly I'm astonished (and proud) that public opinion has shifted so quickly.
It's all the people coming over the last 15 years. It's easier to hate an abstract notion of a person--all those gay stereotypes, plus what you hear in church--than someone you know and care about.
Great news. Glad this won't be an issue going into the next presidential election. There's been so much time wasted on this issue when, at the end of the day, any 2 consenting adults should have all of the same rights as any other 2 consenting adults (barring felony conviction, poor mental health eval, etc).
I agree, I'm tired of hearing about this topic and the time wasted on it.
Although, I'm waiting for the 3 consenting adults lawsuit, that will be interesting.
EDIT: since the world is full of reactionaries that love to take things out of context; my public disclaimer on this is that I have no issue with this ruling.
Though sometimes it can be entertaining. In the UK the debate included one lord embarrassing himself by "warning" that gay marriage might lead to a lesbian queen giving birth to a future monarch through artificial insemination, as well as musing about how it could allow said lord to marry his son to escape inheritance tax [1]
I'm already looking forward to reading some of the tripe that will be written about this SCOTUS decision...
I'm failing to understand how a lesbian queen and a queen giving birth through artificial insemination is even related. That's just weird. Was the guy suggesting if a queen married to a man, say with sperm issues, who chose to use artificial insemination would somehow produce a child that wouldn't be considered royalty? Even despite being born of the queen? What an idiotic comparison.
Although, I like the father/son marriage thing. That's an interesting thought exercise concerning modern laws. Kind of silly, but interesting nonetheless.
He was just trying to come up with the most offensive sounding (to his conservative constituency) examples to shock.
The father/son marriage thing of course could not happen for the same reason we don't have father/daughter marriages today: the laws have restrictions on close relatives marrying.
> Glad this won't be an issue going into the next presidential election.
I wish this was true. But I think the decision will increase the discussion of marriage equality in the next election. Just look at the political impact abortion had after the supreme court decided Roe v. Wade. Abortion was used to galvanize conservative votes against liberals and SCOTUS.
>The judges should declare all consenting marriage legal !
If it is truly consenting, taking into account the modern defined limits on who can give consent, why not? A polygamous relationship is already legal in practice (adultery and extra-marital sex are not crimes). The paperwork and law changes aren't going to be simple, but besides for that I don't see a justification in continuing the ban.
Polygamous/polyamorous relationships can easily be supported from a property rights standpoint using corporate entities (LLCs). I see it as the ultimate social/political hack for a right.
I wish more people saw it this way. The fact that a government has any say in who can/can't marry and be with in their private lives is absurd. The concept of marriage should be left up to religious entities.
However, there are many legal matters that are deeply affected by marital status (whether or not you want to call it differently). Many of those rights/benefits are there for good reasons, e.g. child custody, decision-making in medical matters, etc. You can call marriage something different but you'd end up with a legal relationship that looked an awful lot like marriage. Personally, I don't think having a civil union that's different from a religious marriage (with no legal significance) is unreasonable as a concept. But it's not the way institutions have evolved--and, especially now, it doesn't really solve a problem. One could imagine civil unions being expanded as scope but they're never going to be arbitrary so long as there are rights and responsibilities associated with them.
I doubt the USA keeps an eye on Canadian legal cases (though Commonwealth countries certainly do) but Canada's polygamy laws were tested by a high court very recently (2011). The existing laws were upheld.
If the age of consent is 18 (and I don't think that is true across all the States), then 17 is illegal and should be illegal no matter what the age of the partner is.
I am sure a lot of people don't myself included. We are talking about the law and minors though. Society sets that "consensual" age limit. I am sure everyone has their age "line in the sand" so to speak.
But most of the time the law has provisions for edge cases, such as the Romeo and Juliet laws that exist in many states (laws that override the age of consent when the age difference is small).
Some jurisdictions disagree. Personally, I think it's a lot different for a couple who barely straddle the consent age to be having sex, than for one of them to be 50.
SSM and polygamy are not really related issues. You run into very complicated issues when you consider how children and property ownership would work in a many-person relationship. Marriage specifies shortcuts for these kinds of things, but they only work for two-person relationships. Polygamous relationships would basically require unique contracts given all circumstances, which is a pretty high burden. It's also not clear that polygamous marriages would have the same kind of societal benefits that two-person marriages have.
I think it's a point that can be convincingly argued, but the legalization of SSM does not imply a requirement for polygamous marriage's legalization. They're entirely different issues.
It should be restricted by age, but even when I don't agree with you on that point, I don't understand the downvotes (not that I really care about internet points BTW)
One problem I have with polygamy is that its more common to have one-man-many-woman marriages than one-woman-many-man marriages. This results in a surplus of single males, who are prone to causing trouble.
Social security, tax benefits, death benefits (including child custody), health insurance coverage, legal (marital communications privilege) There are probably thousands of these baked into our state and federal laws.
There are a ton of legal ramifications, including tax benefits (it's advantageous for a married couple to file income taxes jointly), immigration (spousal visas etc.), inheritance, and so on.
I believe immigration and federal taxes, which are handled solely by the federal government, are not affected as the US (on a national level) already recognized same-sex marriages after the DOMA overrule.
I don't know all (or many) of the specifics but I know a big one is that in certain states/situations partners were not guaranteed visitation rights in the hospital on the grounds that they weren't legally married.
I think estate planning and inheritance all could have been done before (you can leave your money/assets to whoever). This just ensures your spouse gets it even if you don't have a will.
From what I understand, in some cases where the couple didn't do any estate planning the deceased partner's family could seize the deceased partner's property out of spite, sometimes leaving the surviving partner homeless or destitute.
I don't think he meant it like that. I echo the sentiment: it shouldn't have come to this. It should not have been a social, political, or legal issue. There's so much hate and bigotry in this country that needs to go away.
edit: at least I hope he didn't mean it like that :(
By "more important" I mean that intelligent people view marriage equality as a fundamental right that we shouldn't have to fight for. Now that we don't have to fight for marriage equality, we can move on to other issues that may warrant more of a fight.
I think you and I feel the same way about equal rights in general...it can just be hard to distill and convey some opinions via an HN thread.
I'm glad we're in agreement on the issue, but I still think your wording shows an underlying dismissiveness of the work that went into this and the importance of today's decision. You're telling everyone "OK great, move on." like we shouldn't be celebrating this.
Just because you see it as dismissive doesn't make it so. You don't get to decide the intent of the statement. You can state your opinion about it and ask for clarification, but you don't get to define it for your own purposes.
I don't think you understand how reality works. You get to say whatever you want, and intend it however you want. Then the rest of us get to interpret your meaning and decide what it means for ourselves. You don't get to tell everyone else what to think of what you said. You just get to say whatever you want. You don't get to restrict how other people interpret what you say.
While you're technically correct that intent and interpretation are entirely independent, if you throw away all context of the statement and frame it in your own pedantic and literal interpretation...why are you even engaging in communication? You obviously aren't putting forth any effort to understand the speaker's intent and that seems to be at the heart of conversation and debate alike.
My point is not to throw away the speaker's intent, my point is that the speaker's intent is only one factor in how people will interpret what is said.
For example if I say "She sure is smart for a girl." I may not be intending to be a misogynistic asshole, I may be intending it as a compliment. But most people are going to read it for what it is; a comment that shows my own bigotry and means nothing outside of that.
Not when your interpretation seeks to define the other person's statement to fit your viewpoint. You can respond with:
"You seem to be saying this, and I think that's wrong. Is that what you're saying?"
versus:
"You are saying this, and you are wrong."
It's called communication. It's a two-way street.
If the speaker intends a statement as a compliment but states it badly, why is your reaction that much more important because you take it as an insult? Why do you get to redefine the intent and totally dismiss the statement altogether, which means you are also dismissing the intended compliment?
That type of reaction actually increases the misunderstanding and makes the problem worse in the long run.
I think you're misinterpreting my comment. I absolutely believe that all people deserve equal treatment and opportunities. We obviously aren't there yet, and far too many LGBT folks have been treated horribly for far too long. I find it shameful and embarrassing that our lawmakers have persisted these backwards "anti-X" policies that "should" have never taken root at all. I'm hopeful that soon we'll look back at these anti-LGBT policies the same way we look at racist, sexist, etc. policies from the pre-60's US.
The hope expressed here, which I share, is that settling marriage equality can help move us to a world in which politics isn't dominated by a discussion of what or who people consent to do with their own bodies.
You don't need to be straight to think that there are deeper issues which which still exist that, if solved, could have made marriage equality something which was never controversial. For example, why should any government have any say over whose relationship is legitimate?
There's an old idea that the government exists to serve the governed and that any situation in which it intervenes should only be to protect them, not to dictate the terms of their religion or their private lives. And yet the US government is in a situation where it seems to often serve the interests of only those who can hire lobbyists. Protection is redefined as protecting the wealth of those few, and elected representatives focus their campaigns on the most divisive cultural and religious issues over which they have minimal influence to distract from what they actually do on a daily basis, which is mostly meeting with lobbyists.
Plenty of people will vote for one party solely based on their support or opposition to a single issue such as abortion or marriage equality, and while those are important issues, they have allowed politicians to get away with whatever else they have wanted to sneak into their agendas.
I hear it as "issue" with some sarcasm. As in, I can't believe this isn't settled already since it's such an obvious answer. I believe he is saying it wouldn't be an "issue" if people actually appealed to reason.
But I get why you would be offended, the struggles and hardships should not be taken lightly. In effect a white male could make the same comment about women's suffrage and it would not be cast in a good light at all.
Anyway, congratulations! I'm so glad people are finally seeing reason and you can take one more step towards being treated truly equal!
I think it was meant more that this decision and this right for LGBTQ to get married should have been made ages ago. As a society, we're continuing to spend resources fighting amongst ourselves to combat bigotry, anti-intellectualism, etc. In an ideal world, we'd have stomped all these out already and would be working together towards the future. Sadly, we don't live in an ideal world, so we must expend these resources and effort fighting injustice and inequality.
Spoken like a person who's never been locked in jail for 10 years and been repeatedly beaten and raped during that time, all for selling pot.
There are a lot bigger problems than being refused a small amount of government subsidies for your relationship choices. (Note that I am also refused those subsidies since I'm single.)
As a straight Christian who isn't against gay marriage, I agree, but I know the energy that the "church" puts into opposing it is why it as required this much energy. There are so many issues deserving of the church's time and energy (divorce rates, addiction, child trafficking, etc) yet too many are stuck on this one.
It's possible to pay attention to more than one thing at a time. Just because drought in California is much more serious problem than Vibrio vulnificus in the Baltic Sea doesn't mean we should disregard bacterias altogether. Gay rights are not a distraction from Something More Important, it's just one of many issues that have to be taken care of in parallel.
What's more important. Denial of a basic social rite to the 5-10% who are gay, or something like NSA spying that gets tremendous attention on places like HN but only has a material impact on almost nobody?
I would argue that the state of the economy, mass political failure, infrastructure decay, wars in the Middle East, how the US deals with globalization, climate change, and income inequality are more important from a national perspective than both. We (Americans) spend an inordinate amount of time debating religious and social issues (which are ultimately irrelevant for most people involved in the debates) while ignoring huge systemic problems. People should be focusing their attention on real, pressing problems, not opposing social change which has little to do with them. Get out of the way and let progress occur so we can be productive. I think this is what the parent commenter meant.
I'm sad to see this happen, not because LGBTs can marry, in my personal opinion I think they should be able to. I just dislike systems in general that force any global mandate and prefer those in which entities can freely compete against one another to decide between one another what works and what doesn't. The two party, winner takes all system the USA has right now, is already too totalitarian IMHO, this just seems like another step in that direction.
I think in the long term all less efficient, less happiness producing systems will loose out anyway. All you need to do is ensure that your system protects the minority enough so that they can freely compete and coexists with all the rest.
But I'm a libertarian, so I think all laws regarding sexual relations between consenting adults should be repealed whether gay or straight...
Not just because I'm a lesbian (I'm happily single, so no marriage for me regardless), but because it's a fundamental right that shouldn't be denied to anyone. It really warms my heart that everyone can finally marry the people they love.
I think they summarise their arguments themselves. For example
"Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition."
There are plenty of other examples of far more extreme behavior that was tolerated. So saying a Roman Emperor was unable to marry is clearly wrong ex: Nero.
Don't get the tl;dr summary of Scalia's dissent; actually read it. Scalia is obnoxious and mean-spirited (and in fine form this time), but he's a really good writer, the fun- to- read kind.
IIRC, he wrote a book on writing with Brian Garner, of usage dictionary fame.
Ironically, Scalia's language in Windsor and Lawrence before that were what opened the door to federal courts nationwide overturning gay marriage bans:
"The real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by ‘bare … desire to harm’ couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status" (Windsor, J. Scalia, dissenting).
“[W]hat justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the Constitution’? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.” (Lawrence, J. Scalia, dissenting).
Roberts also argued Scalia's own logic back at him in this week's decision upholding the ACA, noting that in 2012 in the decision upholding the requirement to buy health insurance Scalia had stated in his dissent that without the subsidies (for low income insurance buyers), "the exchanges would not operate as Congress intended" because health insurance would be too expensive for low-income taxpayers.
I'm not being partisan but I lost a lot of respect for Scalia when he dissented in a death penalty case and stated (badly paraphrased) that it's essentially ok for the government to make mistakes and execute innocent people because the death penalty served as a valuable deterrent to crime.
I mean really - placing the interests of the state ahead of basic human rights? What could be a more fundamental violation of your rights than to be put to death for a crime you didn't commit?
In a theoretical world where no death penalty existed and was replaced with a life sentence it would at least be possible for someone that was wrongly convicted to be released from prison if exculpatory evidence comes to light.
I think he's often right. But unlike tptacek, I just can't muster any admiration for this dissent. It seemed so petulant, and more grounded in sophistry than law.
Maybe desegregation should have been handled at the state level. It's easy to say "of course the federal government should overrule the states" in cases where the states are obviously wrong, but what about the cases where it's the federal government that's in the wrong? Would standing up for the principle, even in repellent cases like segregation, do more good overall?
- "[T]his Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be."
- "The fundamental right to marry does not include a right to make a State change its definition of marriage."
- "Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept."
- "It is important to note with precision which laws petitioners have challenged. Although they discuss some of the ancillary legal benefits that accompany marriage, such as hospital visitation rights and recognition of spousal status on official documents, petitioners’ lawsuits target the laws defining marriage generally rather than those allocating benefits specifically. The equal protection analysis might be different, in my view, if we were confronted with a more focused challenge to the denial of certain tangible benefits."
Scalia:
- "This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves."
- "We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification. Since there is no doubt whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue. But the Court ends this debate, in an opinion lacking even a thin veneer of law."
Thomas:
- "[T]he majority invokes our Constitution in the name of a 'liberty' that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government."
- "Whether we define 'liberty' as locomotion or freedom from governmental action more broadly, petitioners have in no way been deprived of it. Petitioners cannot claim, under the most plausible definition of 'liberty,' that they have been imprisoned or physically restrained by the States for participating in same-sex relationships. To the contrary, they have been able to cohabitate and raise their children in peace."
Alito:
- "The question in these cases, however, is not what States should do about same-sex marriage but whether the Constitution answers that question for them. It does not. The Constitution leaves that question to be decided by the people of each State."
- "To prevent five unelected Justices from imposing their personal vision of liberty upon the American people, the Court has held that 'liberty' under the Due Process Clause should be understood to protect only those rights that are 'deeply rooted in this Nation’s history and tradition.’ ...And it is beyond dispute that the right to same-sex marriage is not among those rights."
------
Disclaimer, IANAL - just picked the quotes that stuck out at me in each dissent.
Roberts' and Scalia's central theme was the Court overstepping its bounds and ending the legislative process prematurely. To me Roberts was essentially saying, "You guys are winning this on the legislative front easily, this is not something SCOTUS needs to decide." Thomas' was pretty cryptic and relied on lots of quotes from 18th and 19th century thinkers to define "liberty." Alito appealed to tradition and worried about this outcome producing a rush of lawsuits from religious institutions who were left in a limbo by the decision; he would have preferred state or national legislation that could clarify how this affected religious schools and such.
From what I read it is not a states right argument but an argument that the supreme court is supposed to interpert the laws not make them. Some quotes:
"Today, however, the Court takes the extraordinary stepof ordering every State to license and recognize same-sexmarriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sexmarriage have achieved considerable success persuading their fellow citizens—through the democratic process—toadopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriageas a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much moredifficult to accept."
"But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us.Under the Constitution, judges have power to say whatthe law is, not what it should be. The people who ratifiedthe Constitution authorized courts to exercise “neither force nor will but merely judgment.” The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton) (capitalization altered)."
Yep. Maybe we differ in our understanding of the phrase "states' rights argument" but the very first sentence you quoted screams "states' rights" to me - "Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage."
Well all rights not defined in the Constitution are inherently in the domain of the states. Marriage is not within the Constitution and this was not a Constitutional issue. This came before the courts mainly because Federal Law needed to be applied to all states for issues concerning pay, benefits, visitation, and so on. So it was more similar to interstate commerce than anything, it certainly wasn't under the equal protection clause because there had not been a national law denoting the designation as existing. No any attempts to say other wise can be slapped down by 14th Amendment challenges - as in gay couples are designated properly within the confines of the law (likely it may take a bill similar to the civil rights law to make it unquestionable)
"distinctive characteristics" reminds me of "The peculiar institution of the South---that, on the maintenance of which the very existence of the slaveholding States depends"
Pretty crazy to think how far America has come on this and related issues. America isn't so good at changing as soon as we should but we've made a lot of social progress in our short ~300 years.
The other day I was watching Eddie Murphy's "Delirious" special [0]. It's widely considered one of the best standup specials ever and it's Eddie in his prime. But he spends the first ~5 minutes just spewing anti-gay jokes. Not hateful stuff, but just saying over and over how he's scared of gay people, etc. And he was probably the biggest star in the country at the time and at the peak of his abilities as a comic. I don't think that would go too well now (even if it is comedy).
Anyway, congratulations to anyone who was previously unable to get married and can now do so. It's a real victory for the good guys.
The government should not enforce marriage contracts, they should enforce legal contracts. Marriage is a private matter, not a government matter.
They shouldn't officially recognize marriage at all, nor should they discriminate on marital status for tax purposes. All people should be equal in the eyes of the law.
People should be free to enter into legal contracts with whomever they want.
I have nothing to say other than good. This is how it should always have been. To all the people who disagree, you are entitled to your opinion, and to all those who can now celebrate their love with all the peace and respect of any other person, congratulations and I wish you all the best.
Fantastic. Now the next step is to get government out of the marriage business completely (which was the case before the 1900s). Free people should not need to obtain a license from governments to enter a voluntary social contract.
as it is a technical nerds forum lets throw in a bit of technology aspect of it - today's ruling lays groundwork for protecting the interests of children which will be "born", or more specifically - created - using something like the DNA mix-up of the 2 same-sex parents (with, at least at the initial stages of the technology, may be throwing into the mix a biologically minimally necessary of bio-material from an opposite sex donor)
Given this ruling, what do you now teach children? Do you tell your 5-year-old that "when you grow up you marry either a man or a woman"? Are both choices to be equally preferred? Or do you say, "by default" you marry someone of the opposite sex, but if you choose someone of your own sex that's OK? Is it OK to teach that being straight is "the default"?
Being straight has always been significantly more common, and will continue to be so.
You teach them that when they grow up, they can marry someone they love. Which, now, is now true no matter whether you're talking to a kid who happens to be gay or not.
>>> You teach them that when they grow up, they can marry someone they love.
That's avoiding the question. Do you, for example, show kids pictures of gay/lesbian couples and straight couples in equal proportion? Or do you show them mostly pictures of straight couples, and gay/lesbian couples only occasionally? Is it bigoted to teach kids that being straight is the "default"?
I think I would avoid describing any social distinction as, "the default," to children. Do you tell them people are poor or rich by default? Happy or sad by default? The whole dilemma is predicated on looking for a world view that fits into simple binaries.
I would tell children what marriage is, as an idea, and when they ask who can get married you can say, "adults, or children with their parent's permission." It seems like you're concerned with fostering bias or bigotry in children. You will, we all will - our children will generally inherit our prejudices and politics. Part of raising children is working to create an environment where they understand how you feel, but also that disagreement is ok and questioning is ok.
You show them reality. If there's a lot of something, they'll see a lot of it. You can try to distort their education if you want, but they have eyes to see and they're not stupid.
As ecstatic as I am about this, I'm disappointed that it had to come from the Supreme Court instead of the American voters. I do believe that gay marriage is an obvious extension of the non-discrimination clause, so it's perfectly appropriate for the Supremes to act on this. I guess I'm just more disappointed in the voters than anything else.
Don't pause yet, unless you've actually run the numbers. Whether you end up with an actual penalty or not depends on a number of inputs like each of your actual incomes, deductions, how your benefit packages, insurance, and other things are structured. It sounds like you haven't actually run the numbers yet, and are operating out of FUD. Talk to a tax expert, or do some research, before despairing.
Marriage penalty? My taxes went way down when I got married. Additionally, all of the income limits where benefits phase out go up when you're married, so for instance, you might qualify for a Roth IRA when you're married filing jointly, but not if you're single. In my experience, getting married is one of the best things you can do for your tax bill.
I have friends who "got married" in a legally unsanctioned way. No tax penalty, but they still feel like they expressed their commitment to one another.
And yes, obviously there are massive downsides to this approach.
On my birthday in April, my partner Andrew proposed to me in a Minion mascot costume, handing me a solid gold Ring of Power from Lord of the Rings, which was set into a Chicken McNugget, while a live vocalist sang "I Say a Little Prayer for You." When we get married I will feel so grateful to have fallen in love in the present.
Just wanted to point out that certain counties in Alabama have announced that they are getting out of the marriage license business. To avoid sanctioning sanctioning same-sex unions and avoid legal trouble, they won't issue licenses to any couples. That way they can't be accused of discrimination.
"A recent Gallup poll found that 60 percent of Americans – an all-time high – support extending the same rights and privileges to same-sex marriages as traditional ones."
only 60% of US citizens support same-sex marraige? in my area it is more like 90-95%, this was surprising and sad for me to hear
When you say "in my area it is more like 90-95%" are you referring to your perceived thoughts on what the rate would be, or are you referring to an actual poll?
If the former, than your area is probably not 90-95%, your social community is 90-95%. People tend to surround themselves with people with similar views. So it seems like in your town everyone is for gay marriage, when in fact it's the people in your town that you interact with that are for gay marriage. You don't know the opinion of those in your town who you don't associate with.
For example, if you asked me what percentage of the population smoked cigarettes, I would say 5-10%. That's because very few people I hang out with smoke cigarettes. If I were to walk into a bar (well... outside the bar) in a different neighbourhood, I might be surprised to see that 90% of people there are smoking.
An additional factor is that opposition to gay marriage is heavily skewed toward the elderly. I doubt the OP has a large social circle among the medicare crowd, but that is where the pool of opposition remains the strongest. We are just going to have to wait for them to die off.
Absolutely - and this trend is only accelerating... as Americans, we're surrounding ourselves more and more with people of a similar world view. I can see how it happens (and I'm the same, with the vast majority of my friends and social circle university-educated, reasonably progressive, etc.) but it does distort our ability to imagine what the rest of the society's thinking.
Because you can choose read/watch/work/live that is agreeable to your preference, yes one's perception can be very skewed.
Visit some parts of US and it's not 90-95%. And I think some that say they support it but privately they don't care or don't actually agree. It's not cool to oppose SSM in certain industry, age group, etc etc.
Honestly, without knowing the exact question it's hard to predict what the numbers will be. For example, there used to be a ~15% spread between people who supported gays and lesbians in the military vs. homosexuals in the military. [With another ~15% gap between 'serve in the military' vs. 'serve openly in the military'. The things we choose to care about...]
There is almost certainly a question phrasing that would yield something similar to your general sense of people's opinions (once you adjust for the fact you do not interact with randomly selected people, and tend to discuss the issue only with those who feel safe sharing their opinion with you).
It's statistics, it's as accurate as a national weather report. Correct for the most part, wrong in some areas.
Depends on the questions but I'm willing to bet a large majority of that 40 percent could care less either way and therefore don't show up as "supporting" the idea.
Regardless, getting a large number of people like this to change their viewpoint on an ingrained ideology within a generation's time is impressive.
It's hardly a new concept, either. In fact, the root of the latin word "pagan" just means "rustic villager in the country". When Christianity became en vogue in the Roman Empire, it was the rednecks out in the country who were resistant to it, so the word "pagan" became synonymous with "heathen".
Just like infertile couples, or single parents that want children, yes. My cousins foster children, then file to adopt them as appropriate. They've raised 4 fine young people who had a rough start, and done a stellar job.
Gay Marriage is a controversy that is constantly used to to distract people from much bigger problems.
The ruling that had vastly more wide-reaching effects this week is that they upheld the the terrible "Affordable" Care Act. This act is a capitalist abomination of much more well thought-out socialist single-payer plans. Now that health insurance companies have a state granted monopoly, there's no reason to bring prices down or change anything.
> This act is a capitalist abomination of much more well thought-out socialist single-payer plans.
It was what was possible - it barely passed as-is, and only via some technical processes that let it slip through Congress - and I think history'll show it to be a first big step towards single-payer.
> Now that health insurance companies have a state granted monopoly, there's no reason to bring prices down or change anything.
How so? Before the ACA, there were a number of insurance companies that had to compete between each other. After the ACA, there are a number of insurance companies that have to compete between each other. ACA just removed the "I won't buy any and use the ER when I get cancer" option.
Gay people finally earned the right to have their relationships meddled with by the government. Let's see if they remain "gay" (happy). Watch the parades dwindle!
Hah, this seems like a strange way to put it -- "get a gay marriage, go to jail". Maybe the word is used in that way, but I'd tend to say something more like "doesn't exist" or "isn't recognised".
And yet the news reports I've heard on the shooting in Charleston kept mentioning "9 African Americans". No one calls the "white" folks (that would probably be me) "European Americans" or "Caucasian Americans" in the reports.
Right - it's another manifestation of the subtle and pervasive racism in our society. It/we conceptualize and talk about whites as the "normal" ones, the default, and everyone else as not-normal.
I see some fair points in here. It's possible that what I've heard was influenced by the recent findings of the shooter.
But I'm just so pissed, because in my country (Bulgaria) the roma (gypsy) population are always treated (by the media, and unfortunately a lot of people I know) as non-bulgarians, non-citizens, even non-people by some.
But when say the victims of a violent crime are all white, the news don't typically say things like 'all five white victims were....' They just say all five victims were...' and whatever dependent clause.
I understand. I also understand that most media actively try to censor race from most crime reportage. They'll say something like "two males were seen fleeing in a car at high speed after the shooting". Why even say males at this point? Just say people. So, on the one hand they avoid mentioning physical descriptors like race, or age, for most violent crimes, on others, they actively highlight physical and psychological characteristics like race and mental health, and assumed bigotry.
So it's a very uneven treatment.
Also, statistics are unhelpful here. Overall whites are a maj. in the U.S. They may or may not be in the locale where the crime happened, and minorities may or may not be a majority in the place a crime happened. So it very much depends how large you want to make this "place"
2015 — Luxembourg, Ireland, United States of America
2017 — Finland (the law is voted and signed but not yet in effect)
> I mean, Massachusetts legalized gay marriage in, what, 2003?
It's a good point but not without issues to wit the possibility of discontinuation or invalidation (California, Australian Capital Territory) and the fact that subdivision-level generally lacks many (or even most) of the protections and advantages normally granted (not to mention commonly a complete loss of recognition and attendant rights on moving outside the sub-territory)
Not to mention the population of the US is almost larger than every other country on that list combined.
It's an astounding feat to have accomplished such a vast cultural change in such a short amount of time. I've read recently that upwards of 25% of the entire US population has shifted its view on gay marriage in just ten years.
GP did specify "the developed world". It is a very fuzzy criteria, but however you slice it it's a far cry from 195 countries. The IMF identifies 37 advanced economies and the World Bank lists 31 "high-income OECD members" and 28 Development Assistance Committee members.
Coming from a European, I think that's a bit of unnecessary quibbling intended to justify condescending to the Americans. The United States started out as something like the European Union: a partial union of sovereign countries. As such, the appropriate comparison would be to ask: where's the ruling by the European Court of Human Rights declaring that all EU members must implement gay marriage, or else? Get with the times, you backwards-looking conservatives on the Old Continent!
And, to this day, the separate regions, which are admittedly larger than states, actually do behave somewhat like different countries. The differences become especially visible when you look at public policies and development indices: different states in the USA have various levels of honesty in government, civil rights, economic development, average education, etc. In fact, on a state-by-state basis, some US states are more highly developed than many/most European countries.
Note that those dates are somewhat oversimplifying things. For example, in Sweden there was something called "same-sex partnerships" from 1995 which legally was equivalent to marriage.
It was equivalent to marriage in Sweden which is an important difference, civil partnerships are inconsistent[0] and not necessarily transferrable across borders.
You're right that just listing the dates for same-sex marriage doesn't tell the whole picture, but adding civil partnerships and their details would necessarily expand the comment to something closer to a book.
[0] for instance in France civil unions are quite literally a marriage lite, open to all and very commonly used as a legally recognised engagement by heterosexual couples (>90% of civil unions are heterosexual)
> not to mention commonly a complete loss of recognition and attendant rights on moving outside the sub-territory
That wasn't necessarily the case; a bunch of Full-Faith-and-Credit-Clause cases were also being litigated before this decision. Though it would probably have ended up as more of a complex mess.
No, because there is an objective difference. One pairing tends to procreate, the other cannot. The state has an objective interest in facilitating one over the other.
Procreation at this stage of our civilization is not the hurdle, procreating high-value citizens is the hurdle. Whether your value metric is happiness, ethics, wealth, income, etc., or whatever combination.
Once past the baseline survival of struggling to meet and secure basic physiological needs, arguably established for the majority in the developed nations, our species (not just "the state" groupings) should be blind to which groupings (not just pairings) facilitate the procreation and raising of high-value future adults, and if interfering at all, should instead focus upon which individual "family" groups are producing high-value results, regardless of the structure of the "family".
There are long and interesting discussions about what constitutes high-value; that's politics. But I don't subscribe to the notion that there is a currently-valid "objective interest" in promoting heterosexual families on the basis of straight-out procreation. If the species dropped to a population bottleneck level again, then sure; but absent similar catastrophic situations, I don't see where simply promoting procreation progresses the species' civilization, though I welcome counter-views.
To be honest, the couple that can't procreate isn't necessarily a same-sex couple. And many couples, gay or straight, that wants children but aren't able to procreate will adopt a child that would otherwise not grow up with devoted, supportive parents.
>Yeah, you should start leading again by cross-species marriage too.
They keyword is consent. Animals can't consent. Children can't consent. Having said that, in a few years (decades?), I could see poly-marriages also getting equal standing under the law.
There is no question that this is the case. This video a guy articulates this, be warned I suspect that his conservative opinions and religiousness may rub some HN users the wrong way. However I think his point is persuasive and well made nevertheless.
The graph-theoretic algorithms necessary to puzzle out polyamorous marriage contracts are going to be somewhat irritating to explain to the legal folks...
As I learned recently, you can click the time stamp of their comment and flag it for moderator review on the resulting page. That's the path to reporting hateful or unacceptable speech.
what? what's hateful? How's giving animals the status of humans hateful? I gave a no analogy there. I mentioned a possibility. Also, I am pretty sure 100 years back someone mentioning that gay marriage should be legal was categorized as hateful.
EDIT: Don't downvote just because you can't wrap your head around it. Their expression of love is a consent and marriage rules and interpretation can change like now. Also, legalize polygamy right now.
good...now maybe the so-called "leftists" can put this issue aside and concentrate on issues that matter to more than about 1% of the population...I refer to these really "silly" issues like wages, single-payer healthcare (obamacare is a mess), trade, flooding of the labor supply, the drug war, worker rights and benefits, more time off and vacation, monopolies, regulatory capture, NIMBYized zoning/regs (aka affordable housing)...you know, the issues that matter to all americans, the issues that used to occupy leftists before they got sidetracked with The Most Important Issue Of All Time.
What makes you think that people have not been and do not continue to fight for those issues at the same time as they have been fighting for this issue? There is not one "leftist" who can only address one issue at a time and there are lots of other people besides that "leftist" who are pushing for progressive change.
I wonder why this bothers you so much and why you seem so dismissive of the issue.
I don't disagree with marriage equality at all, but I also believe that the whole "culture war" has been horribly destructive to our ability to address more pressing issues. It's been a fantastic divide-and-conquer tactic to con lower income (and usually socially conservative) people into voting against their economic best interests, and to prevent the formation of any meaningful progressive coalition on these issues.
Hopefully we can reach some kind of consensus here and put some of this to bed so we can move on to things that are, I hate to say it, much more important -- like the things you list.
the readers here are young and educated, which for practical purposes translates to being fascist.
Fascism is best defined by the degree to which the overclass controls the youth of a nation by propaganda. Because the youth of today have been pushed into college, that means they are highly propagandized.
And of course the overclass loves it when they can force the youth of the nation to focus on an issue such as gay rights. Not only is it a natural wedge issue, making it harder for the people to unite against the overclass, but by leading youth into social issues leftism and away from hardcore economic leftism, this is a win-win for the overclass.
Anyway, this dynamic in play here with gay marriage is a perfect window into american fascism.
To be fair, it's that big of an issue among conservative Christians as well, when I reality there are much bigger issues that fall under that group's area of concern.
I'll tell you it upsets me to see so many homophobes here on Hacker News attempting to argue that those in same-sex situations should be denied the right to marriage.
A sad day for our country, our highest court and much of our culture has succumbed to social insanity. For my part, I will never under any circumstances recognize by word or deed that any so-called marriage can be or has been established between two persons of the same sex. No government on earth has the power or authority to do that, anymore than a legislature could repeal the law of gravity or a judge could declare a human person to be a toaster oven. With kindness and charity, but with firm resolve, persons of good will should give civil disobedience to this court ruling and all that flows from it.
What "social insanity" is it to recognize and legalize a completely natural phenomenon? Or are you going to tell me that all those ducks and bonobos are sinners too?
And, if you're a fan of beating people over the head with that book that tells you to primarily love others (e.g. turn the other cheek, see the beam in your own eye, etc.), here's a good money quote (Matthew 19:11-12)
"Jesus replied, “Not everyone can accept this word, but only those to whom it has been given. For there are eunuchs who were born that way, and there are eunuchs who have been made eunuchs by others—and there are those who choose to live like eunuchs for the sake of the kingdom of heaven. The one who can accept this should accept it.”"
That's a red herring, almost concern troll-esque, argument. This ruling isn't a slippery slope towards moral depravity and chaos, no matter how much religious authorities will attempt to paint it as such. We can definitely know that civilization as we know it will not collapse because two guys/girls are allowed to kiss, hold hands once in a while, and receive acknowledgment from civil authorities that they share tax returns.
An important distinction between gay marriage and other human taboos that I'm guessing you're referring to (pedophilia, cannibalism, etc.) is the presence of mutual consent and respect. The ability to consent derives from the uniquely (adult) human ability to reason about the future and one's self-existence to an unusually sophisticated level. Children lack the experience necessary to reason about such things, hence why pedophilia is such a long-standing and widespread taboo.
If two fully consenting adults want to do something that celebrates their shared bond between each other, who or what is anyone else to tell them they shouldn't do that?
You're right, it's not a slippery slope. It's a gate we've opened and said that whatever your sexual compulsion is, no one else has a right to tell you that it's wrong. That is a very dangerous gate to open and you don't get to close it after gay "marriage" is approved - others will want the freedom as well.
It's not a red herring because you already have people on HN, and I'm sure many many other places, asking when polygamy will get to share in the same "civil rights".
And to play devil's advocate (and that language is intentional) who are you to say that a child or an animal can't consent to a sexual relationship or marriage with another child or an adult? How closed-minded of you.
We are already giving children under 18 the right to access birth control (without their parent's consent) and the freedom to decide that they are not the gender that they were "assigned" - so why can't they decide who to "love"? And who are you to say an animal doesn't have the same rights, feelings, and ability to give consent as a human? I think PETA and many others would actively disagree.
If you pay attention, I haven't mentioned religion. What I've mentioned is the reasoning and appeal you gave for allowing what is "natural". Who decides what is "natural" and acceptable for human beings? The animal kingdom? You personally? These are not troll questions, these are important questions and it matters gravely how we answer them.
> You're right, it's not a slippery slope. It's a gate we've opened and said that whatever your [thoughts, feelings and behaviors about X are], no one else has a right to tell you that it's wrong. That is a very dangerous gate to open and you don't get to close it after [X] is approved - others will want the freedom as well.
This isn't an insult, but you're a nitwit? The argument you're making is the prototypical "slippery slope" fallacy.
I'd advise you to actually read the article you are linking to.
> in which a person asserts that some event must inevitably follow from another without any rational argument or demonstrable mechanism for the inevitability of the event in question.
His argument is not a fallacious one. The reasoning used to justify applies to other scenarios. Polygamy is the main one brought up on this thread: Why are we telling adults who and how many people they can marry?
If you legalize [x] because [y] and [y] also applies to [z] then [x] and [z] are equivalent for reasons [y]; therefore [z] should be legalized if [x] is legalized unless [x] and [z] are demonstrably not equivalent for reasons [y].
I'd also like to note that the cutoff for being an adult should be 25, not 18. Therefore people shouldn't be able to be married until they are 25. The age of 18 is arbitrary and in many places that age is 16. In some places that age is 14. When exactly is the cutoff? Well it's based on an individuals mental maturity, which is not equivalent to their age. I've met 12 year olds who are more rational and mature than 30 year olds.
Furthermore:
Hebephilia and pedophilia are often merged concepts when people speak. For the people speaking on this subject, can you clarify which you're talking about? It's difficult to tell which people mean, but it usually gets clarified to the 13-16 year old ranges. At that age, I'd argue most children understand marriage, can be educated on the government-related issues to marriage, and understand sexual relations and pregnancy. The idea that they can consent to sexual relations of other minors, but not of adults, is some form of double-think. Note that in this context it doesn't seem marriage is what is being brought into question: just sexuality.
Note that I'm not defending it: I think people shouldn't be able to have sex or get married until at least age 25 unless they can demonstrate the ability to proper care and provide for a child with a stable income.
Can you name one other kind of marriage that will necessarily get legalized because we legalized same-sex marriage?
Can you name one other kind of marriage that is demonstrably more likely to get legalized because we legalized same-sex marriage?
If there's any kind of slippery slope, it's the slippery slope from man-woman marriage to adult-adult marriage. Well, we've slid down it, and now we're at the bottom.
We haven't slid to "adult-adult marriage" yet until the above are legalized across the board. So please don't misrepresent man-man and woman-woman as being adult-adult (or adult - n adult)
Since marriage does not imply reproduction, an incestual couple can refrain from having kids, adopt, use a surrogate/donor, etc. so there is no "but imbreeding" argument. Which is an argument about genetics... Isn't choosing who can reproduce a form of eugenics? We don't stop people with known hereditary complications from choosing to have kids, why should we stop siblings? If they choose to accept the risks, why should society have any say in the matter?
It's a social taboo and imbreeding are the only given reasons of why it is "bad".
Some could argue a failed relationship can lead to issues in a family household but I don't think that has any real merit. Dating a family member's best friend and it going sour can have similar consequences.
>You're right, it's not a slippery slope. It's a gate we've opened and said that whatever your sexual compulsion is, no one else has a right to tell you that it's wrong. That is a very dangerous gate to open and you don't get to close it after gay "marriage" is approved - others will want the freedom as well.
Call it what you will, a gate or a slope: we are describing the same phenomenon: "Things will get worse now that we have allowed this one thing." Answer me this: why is it [a] dangerous [gate] for two people of the same sex to commit to one another (mainly financially) under the eyes of the government? "Others" might want the freedom, but social mores at large will dictate what becomes legal practice and what doesn't. (P.S.: You've yet to explicitly define "others". What exactly do you have in mind?) As I've stated above, the ability to consent is what separates out what should remain illegal and what should not remain illegal.
>And to play devil's advocate (and that language is intentional) who are you to say that a child or an animal can't consent to a sexual relationship or marriage with another child or an adult? How closed-minded of you.
Bitter and unfortunate irony aside, "consent" isn't some ill-defined term that I'm pulling out of left field. College campuses across the United States are developing programs for 18-year old freshmen so that they understand what consent entails, so as to encourage the formation of psychologically, socially and physically healthy (sexual) relationships. For the most part, these programs are geared towards alcohol awareness and the new found freedom of dorm life, but the concepts remain the same. Can a child fully understand the implications of "touch me here"? Can an animal? Can a person blowing a 0.30 BAC? Also, I am not deciding that a child can't consent, I am merely describing social issues that are studied by people who know more than I do.
> We are already giving children under 18 the right to access birth control (without their parent's consent) and the freedom to decide that they are not the gender that they were "assigned" - so why can't they decide who to "love"?
Oh the humanity! Birth control for post-pubescent girls! Birth control and gender assignment are issues of a different nature than gay marriage or pedophilia. Firstly, birth control has medically useful applications outside of pregnancy prevention. Regardless, both birth control and gender assignment are things that only impact the "self", so the comparison falls flat. What does birth control have to do with harm or damage to anyone else? What can gender reassignment do to harm anyone besides the individual in question? It is a well-known phenomenon that victims of child abuse and sexual abuse have issues that last into adulthood. [1] Neither birth control nor gender reassignment surgery promote poor mental or physical health.
> And who are you to say an animal doesn't have the same rights, feelings, and ability to give consent as a human? I think PETA and many others would actively disagree.
I don't have a quote from PETA (I will leave it up to you to flesh out that argument, and find evidence that they actively support sexual relations between man and animal.), but I have found a quote from another ethical promotion society. "As animals do not have the same capacity for thinking as humans, they are unable to give full consent. The HSUS takes the position that all sexual activity between humans and animals is abusive, whether it involves physical injury or not." [2]
> If you pay attention, I haven't mentioned religion. What I've mentioned is the reasoning and appeal you gave for allowing what is "natural". Who decides what is "natural" and acceptable for human beings? The animal kingdom? You personally? These are not troll questions, these are important questions and it matters gravely how we answer them.
Whether or not you've explicitly mentioned religion, reading between the lines of your post suggests that your version of "natural" is based on what comes from the Abrahamic religions. What is "artificial" about letting people feel more comfortable in their body? (Gender reassignment) My personal definition of "right" (and to a lesser extent, "natural") revolves around minimizing harm (physical, emotional, social) done to others. Without getting into an argument about natural rights and the purpose of government... The government disallowing two consenting adults of the same gender from sharing certain financial rights promotes undue harm and hardship. Why should they suffer because they are attracted to the same gender rather than the other? Conversely, the government disallowing an adult from having a sexual relationship with a minor prevents undue harm to a defenseless child.
I don't get to decide what is ultimately right, so the above postulation is just one of many that gets thrown in to the pot of "democracy". Independent of who gets to decide for society, what matters in this forum is strength of argument and logic. Frankly, you've haven't made an argument (that I can see) as to why allowing gay marriage will inevitably lead to the legalization of pedophilia/bestiality/taboo de jour. With that, I'm giving you the benefit of the doubt in taking your implication at face value: that gay marriage, in and of itself isn't bad, but since gay marriage might lead to "bad" things, it becomes a "bad" thing too. (Which I believe is specious at best.)
>Neither birth control nor gender reassignment surgery promote poor mental or physical health.
I'd argue this study [0] shows that gender reassignment surgeries increase risk of suicide compared to transexuals pre-surgery with a strong confidence rate. Whether this is due to the surgery or due to increased harassment for their transexuality post-surgery is to be debated (doesn't seem to be mentioned)
There are further studies that show that reassignment does not typically improve one's self-image or happiness. In fact, the countless amount of data has led me to not go through with GR as it seems both expensive and studies show it doesn't really help one become happier with themselves: it can make it worse.
Note that the study was conducted in Sweden - the social stigma is far less than here in America.
> I am not deciding that a child can't consent, I am merely describing social issues that are studied by people who know more than I do.
So the people "who know more than you do" get to decide if a child can consent to have sex with an adult? And what if they change their mind, does that then make it acceptable and healthy?
My point is that when we say that there is no objective standard of right and wrong then we don't get to arbitrarily stop the sexual "civil rights" train after we get what we individually want or what we find acceptable.
There are plenty more people who have not yet been granted the freedom to express their desires by marrying the individual(s) they "love". And who are you to say that their desires aren't valid and healthy? And by what standard?
I don't think the issues are that closely related.
You don't have to be married to have sex, and practicing pedophilia is already illegal.
Pedophilia is categorically different from homosexuality. Children don't generally seek out sexual relationships with adults, making it intrinsically one-sided, and it involves other inherent asymmetries of experience and personal liberty. It's illegal for much the same reason that children can't sign legally binding contracts with adults. (Which also, by the way, makes pedo-marriages illegal as marriage is a contract.)
The zoophilia thing is kind of a red herring for its sheer bizarreness. I mean it does exist, but so do people want to have sex with cheese. Do we deny rights to a huge number of voluntary loving relationships because of bizarre edge cases that occur in minute fractions of the population?
Slippery slope arguments are not always invalid, but they only apply when the slope is actually slippery.
This isn't "moral anarchy." It's a debate between two theories of morality: religious-traditionalist vs. utilitarian-humanist. Both are theories in that they take coherent positions. Neither position is anarchy. If you want to debate, why not debate the real metaphysical and epistemological issues instead of these surface proxy ones?
Now you seem to be arguing about the integrity of the entire fields of psychology and sociology? When I say those "who know more than I do," I am simply deferring to scientists that have studied observable phenomenon and concluded certain things. Science is an ever-evolving field: if scientific consensus was reached that gay marriages, say, encouraged criminal behavior as an adult, then I would reconsider my beliefs.
You are right that we don't get to stop the "civil rights train" (S.B.: what a horrible phrase) when one of us individually gets what we want, but we also don't get to stop the "science train" from telling us cold hard facts about life. (Get over it: gay people can love and raise kids just as well as a heterosexual couple. [1])
What "plenty more people" do you have in mind? Then, tell me how those cases aren't covered by my discussion of consent and we might get somewhere. Those "other people's" freedom to express their desires ends where the harm of another begins.
> Now you seem to be arguing about the integrity of the entire fields of psychology and sociology?
Yes, I am. Because opinions change, scientific or otherwise. Recently opinions changed from calling homosexual marriage an absurdity to a civil right. They also changed from saying that a parent should teach their child about what it means to be male or female into saying that a child can choose his own gender.
> What "plenty more people" do you have in mind? ... tell me how those cases aren't covered by my discussion of consent and we might get somewhere.
Polygamy/Polyandry:
Three consenting adults all love each other and are currently being denied the right to be married. Why should they be deprived of this "basic civil right"?
And if a person loves 20 other people and wants to marry them, then why should they be deprived? Because you don't personally feel that way? Because it's too much paperwork?
Pedophillia:
We are now told that young children have enough understanding and mental faculty to decide that they should be assigned to a different gender and that they should have the ability to control their own sexuality by obtaining birth control with only their individual consent (not their parent's).
If we have come to say that a child can consent and be in control of their own sexuality, then how can we say who they are allowed to have sex with or marry? And by what standard?
If a child is convinced that they are in a mutually consensual, loving relationship with an adult, what right do we have to violate that child's consent?
Zoophillia:
PETA has already shamefully attempted to exploit the pain and persecution of Black Americans (just as the homosexual movement has done) in order to try and say that animal freedom and rights are equivalent to human rights.[1] If animals can feel and think and be happy and give signs of cooperation and acceptance, then who are we to deny their freedom? If an animal wants to marry a human, then how can we deny the two individuals this basic right?
[1] https://www.youtube.com/watch?v=8PZBV8O5pfI
And feel free to add on any other combination that an individual decides is their civil right. Because as long as it doesn't harm anyone else, who are we to stand in the way of love? Right?
> Recently opinions changed from calling homosexual marriage an absurdity to a civil right. They also changed from saying that a parent should teach their child about what it means to be male or female into saying that a child can choose his own gender.
You fail to make a convincing argument why this is a bad thing and not a good thing. As you've written it, it's descriptive and not prescriptive. The way I see it, these are great things. Tell me why they are bad things.
> Polygamy/Polyandry: Three consenting adults all love each other and are currently being denied the right to be married. Why should they be deprived of this "basic civil right"
You're trying to paint this argument as a spectrum, and attempting to make it seem like "gay marriage" is violet and "polygamy" is indigo. Polygamy has material differences from gay marriage between two adults, that the government will likely not budge on: namely, two vs. multiple. I don't personally care if twenty people get married to or have sex with one another, and many cultures don't care either. Yet again, my opinion is only one in the melting pot. If it's legalized, what's the harm? You've yet to successfully opine as to what harm will come about if polygamy/polyandry is legalized.
> Pedophillia: We are now told that young children have enough understanding and mental faculty to decide that they should be assigned to a different gender and that they should have the ability to control their own sexuality by obtaining birth control with only their individual consent (not their parent's).
Yet again, you're ignoring the point that deciding what one's own gender identity is, is completely distinct from being sexually involved with an adult third party. This is a clear line, and is well defined legally. Consent isn't the slippery slope that you're making it out to be. A child can't create legally binding contracts in the eyes of the US government. What obligation (and to whom) is engendered by deciding that one wants to switch genders? The standard describing who a child can have sex with is based on existing statute, that modern/current science has revealed to be a pretty good way to continue doing things. That is, "don't let an adult have sex with kids below (age of consent)." The notion of an age of consent is a hot topic for a good reason: age is truly but a number, but science and psychology suggest that very young children shouldn't have sex with people over a decade older than them.
> Zoophillia: PETA has already shamefully attempted to exploit the pain and persecution of Black Americans (just as the homosexual movement has done) in order to try and say that animal freedom and rights are equivalent to human rights.[1] If animals can feel and think and be happy and give signs of cooperation and acceptance, then who are we to deny their freedom? If an animal wants to marry a human, then how can we deny the two individuals this basic right? [1] https://www.youtube.com/watch?v=8PZBV8O5pfI
How has the "homosexual movement" exploited the pain of Black Americans? I wouldn't call it exploitation, I'd call it liberation. Using your logic, we shouldn't have freed slaves either, because the "gays" will soon be able to marry, right?
PETA making the argument that animals are like slaves is a silly one. People with darker skin tone are still people. Animals are not people. People who like members of the same sex are still people. This is simple logic. Genetic makeup is the criteria here, much like age and number are the significant criteria for your previous two examples.
> And feel free to add on any other combination that an individual decides is their civil right. Because as long as it doesn't harm anyone else, who are we to stand in the way of love? Right?
Your bitterness is absurd. Polygamy/polyandry may or may not harm others. Pedophilia and zoophilia do harm others who don't have a voice, hence the clear divide between those two and a type of legal relationship between consenting adults. Have a good day... my patience for ignorance is wearing thin so my input ends here. Thanks for the semi-sincere arguments.
The religious arguments made by opponents to this are disingenuous.
The Bible and many other traditional religious texts have lots of bad things to say about, say, usury (the charging of interest, or at least excess interest), yet you see nobody protesting outside credit card companies or payday lenders. I don't think I've ever heard a Christian conservative criticize our excessive level of private debt. The Catholic Church today is generally anti-death-penalty and anti-war, yet these Papal opinions do not seem to trickle down to the laity either. Christian conservatives were mostly cheerleading the Iraq invasion, though protestants did so slightly more than Catholics.
That tells me this is a proxy debate, at least for the right, and that the real issue is something else. Proxy debates happen when the real issue being debated is something that is verboten in polite discussion, or is something that's already been put to bed -- e.g. the "evolution" proxy debate which is really over teaching of religion in schools (an already settled issue).
The real reason as near as I can tell boils down to crypto-racism and eugenics concerns. If homosexuality is "okay," then that might negatively impact fertility among more "desirable" urban demographics, etc. Basically the concern is that this will negatively impact white or upper class fertility.
That stuff is verboten to talk about in polite company, thus the proxy debating.
P.S. I don't agree and am pro-equality -- I am just analyzing what I see as the real reason for all the opposition. Delve into the right-o-sphere and you immediately run into a ton of "HBD" (human biodiversity, a modern neo-racialist rebranding) type stuff.
P.P.S. I did give the parents a compensatory up-vote since I don't think down-votes should be done out of disagreement. Down-votes should be for things that are just stupid, effortless, or mean-spirited, not for opinions that are just unpopular.
So, speaking as the thing that goes bump in the night (NRX, HBD, the works), I'd agree that your average anti-gay-marriage person is not reading Leviticus and pulling out political positions based on such. I'd even agree that it's a proxy debate.
But I don't think the real issue is crypto-racism. I mean, for one, I'm what you'd call a "racist" and I don't mention such to my anti-gay marriage family. I mean, hey, if racists and homophobes are all one big happy family, they'd know it, right? All I can say is that I'd advise you to take it in good faith when someone says they're against gay marriage and abhor racism. I'm not one of those people, but I used to be, and there are many of them.
(Another way you can tell: when conservatives parody protected classes by assigning as many statuses as they can think of, often they will come up with the black disabled lesbian with a liberal arts degree. But that would be an object of glee rather than outrage for the person you describe: the suicidal enemy. That conservatives don't like the BDL tells me that they don't really consider the homosexual part (or the degree!) a handicap. That's a victory, of a sort, for someone)
But I do think you're right that it's a proxy debate. I think it's an attempt to re-fight the sexual revolution, and gay marriage is seen as yet more lost ground on that front.
Was this a viable political strategy? Intuitively no, and empirically, definitely no. But voters gonna vote.
Thank you, quite insightful and I agree on all counts. My use of the Bible quote was an attempt to cherry-pick in the same sort of way as the arguments I'm detracting. The selective re-imagining of religious texts to fit the preexisting social and ethical desires of a group of people is probably an issue as old as religion and organized civilization itself.
I strongly suspect that the real historic reason for taboos against homosexuality boiled down to two concerns in roughly this order:
(1) Keeping birth rates up in order to raise armies and work forces. Agrarian civilizations derived power largely from their demographic vitality. There are actual references to this in the Bible if I recall correctly -- about your children being as arrows in a quiver, etc. Opting out of fertility was to those civilizations akin to draft dodging or not paying taxes.
(2) Somewhat legitimate sanitation and health concerns before the advent of antibiotics, condoms, etc. -- since some homosexual behaviors are higher risk in this regard. Keep in mind that what today would be a minor infection might be a death sentence back them.
#1 is obsolete. Industrial and post-industrial civilizations derive power from brains and infrastructure, not raw population.
#2 is obsolete if you have an educated population with access to condoms and health care.
If "dysgenics" ever becomes an actual problem we can just fix it with genetic engineering... which of course would require confronting both the left and the right. The left would oppose it because it's not "natural" (no GMO!), while the right would consider it "playing God."
>> With kindness and charity, but with firm resolve, persons of good will should give civil disobedience to this court ruling and all that flows from it.
lol wut. In a single sentence you basically just said to nicely riot
My goodness, the barely-concealed hate in this is shocking. It's a very, very sad thing these people do. And I can't help but find "black robes" a bit telling, although maybe that's just some sort of bias or psychological effect.
What a crappy ruling. Yes the answer they got was right, but they never bothered to rule that sexual orientation is a (partial) suspect class. Now we have to wait for another ruling to get that resolved. Stupid lazy evaluation of courts.
What is the root problem? People on both sides of the debate agree (if given the option) that the government probably never should have messed with marriage, at least not as the cultural/religious thing that it is.
In a nation where we care so much about the separation of church (broadly defined to include ideologies that may not be formal religions) and state, I don't understand why we're seeking to only expand that connection.
What should happen is the government should stop defining marriage of any form (leave that to religion or personal tradition), and simply define all these rights under civil union (or a similar phrase with no significant religious/cultural attachment).