Marriage Equality in Iowa
Today the Iowa Supreme Court issued a unanimous ruling recognizing the right of gay couples to marry. The court held that the Iowa statute prohibiting same sex marriage violated the state's equal protection clause.
When you take a step back and look at the basic legal argument behind these cases, the correct answer is remarkably clear. So clear, in fact, that I'm quite certain that future generations of lawyers and law students will look at these cases and wonder why it took so long for the courts to reach such an obvious conclusion, particularly in light of the extensive (and directly analogous) case law dealing with miscegenation laws and segregation. Once you accept the premise that there is nothing wrong with being gay (a premise which, I think, the vast majority of people--especially educated people like judges--accept), it becomes nearly impossible to make a principled legal argument in defense of laws that prohibit gay people from being married. It's just such an obvious and straightforward violation of equal protection.
I'll go out on a limb and predict that--within 10 years--the U.S. Supreme Court, in an opinion authored by Justice Kennedy, will issue a landmark ruling striking down prohibitions on gay marriage. I also believe that the next Democratic presidential nominee will be unapologetically pro gay marriage, and it's not inconceivable that at some point during his time in office, President Obama himself will publicly reverse his position on this issue. The political and legal trajectory of this issue is pretty easy to chart out at this point. And when it reaches its logical endpoint, with full marriage equality across the country, we're all going to look back and wonder why it took so damn long to recognize something so obvious.
When you take a step back and look at the basic legal argument behind these cases, the correct answer is remarkably clear. So clear, in fact, that I'm quite certain that future generations of lawyers and law students will look at these cases and wonder why it took so long for the courts to reach such an obvious conclusion, particularly in light of the extensive (and directly analogous) case law dealing with miscegenation laws and segregation. Once you accept the premise that there is nothing wrong with being gay (a premise which, I think, the vast majority of people--especially educated people like judges--accept), it becomes nearly impossible to make a principled legal argument in defense of laws that prohibit gay people from being married. It's just such an obvious and straightforward violation of equal protection.
I'll go out on a limb and predict that--within 10 years--the U.S. Supreme Court, in an opinion authored by Justice Kennedy, will issue a landmark ruling striking down prohibitions on gay marriage. I also believe that the next Democratic presidential nominee will be unapologetically pro gay marriage, and it's not inconceivable that at some point during his time in office, President Obama himself will publicly reverse his position on this issue. The political and legal trajectory of this issue is pretty easy to chart out at this point. And when it reaches its logical endpoint, with full marriage equality across the country, we're all going to look back and wonder why it took so damn long to recognize something so obvious.
posted by A.L. at 9:18 AM
67 Comments:
As seen from the left time and again, and seen here, there is no reason for elections anymore since the will of the people doesn't matter. Leave it to the left to justify these kinds of outrages in some false notion of "equality".
Here is the major falsehood:
...it becomes nearly impossible to make a principled legal argument in defense of laws that prohibit gay people from being married.
We are assuming a law was created by the legal and binding Constitutional process allowing gay "marriage". That isn't what happened. What happened is that unelected judges made up a law and a right completely out of thin air, one that doesn't exist anywhere in the United States, and one that wasn't voted on by the people.
If the left actually cared about the Constitution, they would actually try to get laws passed through the legislative process, which means they have to defend their reasons and convince people to agree with it. Instead, they find corrupt, anti-Constitutional tyrants to do the work for them.
If anyone thinks a new era of "freedom" is being created, let me just say that I predict, because it happened in California after Prop. 22 was overturned by that state's black-robed tyrants, that the 1st Amendment, all provisions of it, will be turned to dust thanks to rulings like these. There will be discrimination against people of religious beliefs, and tyrants such as these will let it happen.
This is a victory for the left, but a defeat for America.
hey Steve, I think your dinosaur could use some water.
Anonymous (10:40am):
hey Steve, I think your dinosaur could use some water.
Oh really? I would say your dinosaur is what needs water. Tyranny is a lot older than gay "marriage".
Steve, you can play your "activist judges" card all you want, but it doesn't change the fact this is a very basic argument under the equal protection clause. Every state constitution (and the federal constitution) has a clause that requires equal protection under the law.
There used to be laws in most states (all passed democratically) that prohibited people of different races from getting married. But these laws were challenged, and judges began concluding (correctly) that they violated the concept of equal protection. They were discriminatory. Do you disagree with those decisions? How are laws against gay marriage any different?
Equal protection clauses exist in order to protect minorities from unfair treatment by the majority. If judges conclude that a law violates equal protection guarantees, they have a responsibility to declare them unconstitutional. That's how our system is supposed to work.
It's probably also worth noting that a number of state legislatures have overwhelming approved gay marriage recently. Regardless of the consitutional issues, the political tide is turning rapidly in favor of marriage equality.
You can stand there trying to stop this (like a bunch of bigots did in the sixties with miscegenation laws), but you're going to lose. The writing is on the wall. The momentum here is not going to be reversed.
Much as I have disagreed with SteveIL, the repeated personal attacks on him are totally inappropriate.
Our own "progressive" and "liberal" President is hardly a model for us on this issue.
I disagree with A.L.'s contention that Obama will reverse himself. That is because Obama has shown himself to be first and foremost a politician. And he knows that there still is widespread opposition to gay marriage. A state as liberal as California has never been able to approve a SSM proposition.
I will be happy to be proven wrong about Obama.
And what is Obama doing about letting gays serve honorably in our military? Nothing as far as I can tell apart from sigining a useless UN resolution which his own administration declared does not change public policy here in the US.
Steve, I don't care how you react, but fuck you. Really. Fuck you.
Where do you stand on Brown v. Board of Education? Would you have argued that the states should have voted to end desegregated schools? How long do you suppose that would have taken.
The problem with right-wing fuckwads like you, Steve, is that you piously talk about wanting the government to stay out of our lives, not regulate the financial industry, and basically exist to serve as a war room whenever Republican losers like yourself want to invade a country with brown-skinned people. But, whhhhooooaaaa nelly, simply finding out that gay people exist causes half-wit simpletons like yourself to declare the death of society with demands that laws be passed to "do something about it".
Steve, no court is forcing you to suck another man's cock.
AL:
There used to be laws in most states (all passed democratically) that prohibited people of different races from getting married. But these laws were challenged, and judges began concluding (correctly) that they violated the concept of equal protection.
That is an old and ridiculous argument from the left. A man and a woman of different races marrying each other compared with gay "marriage" is apples and oranges. Gay "marriage" is designed to force an acceptance of a behavior that the vast majority of people will not accept unless advocates for it properly convince those people otherwise. That hasn't happened, at least not in Iowa (or California, or Massachusetts, or anywhere else gay "marriage" was "legalized" by tyrannical judges). Don't try using the old race-based arguments since they are invalid.
It's probably also worth noting that a number of state legislatures have overwhelming approved gay marriage recently.
I haven't seen them (and I wonder if it's really true), but that's fine. That's where these kinds of issues need to be settled. If that's the case, then why would you cheer when properly (and non-discriminatory) enacted laws defining marriage as an institution of one man and one woman are overturned?
I haven't seen them (and I wonder if it's really true), but that's fine. That's where these kinds of issues need to be settled. If that's the case, then why would you cheer when properly (and non-discriminatory) enacted laws defining marriage as an institution of one man and one woman are overturned?
Read the news, Steve. In Vermont and New Hampshire (among other places) gay marriage has passed an overwhelming margin in the legislature.
More to the point, though, there's nothing at all inconsistent about cheering on a legislature that does the right thing and recognizing the correctness of a legal decision. When a legislature votes to repeal an unconsitutional law, it should be praised, but that doesn't change the fact that the previous law was unconstitutional.
You can say that comparing gay marriage probitions to miscegenation laws is an apples to oranges comparison, but I guarantee you that future generations won't see it that way.
What's happening right now is the logical consequence of a realization that most people have already had (that there's nothing wrong with being gay). Once you accept that premise, there's no logical way to defend a prohibition on gay marriage. What's happening now is that the law is starting to catch up with the basic premises most people have long ago accepted.
Steve,
The gay community cannot “force” you to change your opinion on the nature of marriage. They may attempt to convince you that your viewpoint is wrong, but these attempts are not by use of “force” as you contends. I attempt to change other people’s opinions on numerous topics virtually all day long, but none of my arguments constitute using “force” or “imposing” those arguments. On the other hand, when people like Rick TAKE ACTION, which actively stops the gay community from living their lives under their own definitions, THEY are the ones guilty of “imposing their views on others.” Simply put, two men marrying on the steps of San Francisco City Hall doesn’t infringe upon Rick's civil rights in the slightest, but when Rick actively pursues a policy that PREVENTS those people from doing so, he is certainly violating their civil rights by forcing them to adhere to HIS definition. Who is really IMPOSING their views on others? Honest assessment can only come up with one answer to this question. As is often the case, it helps to put on the sandals of those with whom you disagree and walk around a bit. One must imagine how it would feel if Rick awoke one morning to find out that there was to be a vote to determine if his marriage was legal. What a preposterous idea! Yet this exact idea is being applied to a minority segment of the population.
To A.L.'s point, I think that people on the right need to ask themselves why literally their two main objections to gay marriage is either religiously based or based on personal prejudice or discomfort.
The miscegination example A.L. is making is completely correct. A generation ago, people couldn't marry outside of their race why? Not because the proof of any actual harm, but because of, you guessed it, religious beliefs and/or personal discomfort. Now, the 1967 Loving decision seems quaint to a generation that actually doesn't fall into existential collapse when they see an interracial couple.
Again, Steve, please explain to us just how straight marriage is "harmed" in any way, shape, or form by gay marriage.
I'm a second-year law student who is very much supportive of gay marriage, and I'm extremely happy that another state will be issuing marriage licenses to same-sex couples. However, I don't think the equal protection argument is as straightforward as you make it out to be.
At heart, the argument over marriage is a definitional one - what do we, as a society, believe marriage is? If it is simply the right of any two, consenting adults to enter into a legally binding, intimate partnership, then the equal protection argument is straightforward – two men or two women shouldn’t be prohibited from marrying any more than a black man and a white woman. But a lot of people don’t share this conception of marriage. While many of us don't want to believe that marriage is a gendered institution, the fact is that for many, many people (including, sadly, a current majority in California), this conception still predominates - marriage is an institution that is available to men vis a vis women, and vice versa. Moreover, this conception has dominated throughout our country’s history. If marriage is defined in this way, there is no equal protection problem – a gay man has the same right to marry as a straight man; marriage just has a meaning that does not appeal to him.
We are engaged in what will likely be a long struggle to redefine our society's conception of what being married means and entails – to transform it into an institution available to any two loving, consenting adults who wish to spend the rest of their lives together and undertake the legal obligations that go along with doing so. In a practical sense I am very happy to see Iowa do what it did, as it will provide an invaluable opportunity for the people of Iowa (as well as Americans generally, via the media) to be re-educated: over the next three years, they will be introduced to a new conception of marriage which, despite being a change from the status quo, preserves the sanctity of heterosexual marriage while extending rights to deserving people who have been marginalized for far too long. But I don’t think that in a legal sense, it is at all foreordained – the real fight is not in the courts; it is in the minds and hearts of the American people.
One of the primary reasons this issue is co contentious is that people tend to confuse the realm of the state with the realm of religion. From a strictly legal perspective A.L. is absolutely correct, period. And the 'race-based' argument is perfectly appropriate in this case. Gay marriage bans can only be defended using non-rational religious arguments and therefore must be found to be unconstitutional.
I had a conversation with a cousin (Catholic) a while back and he got quite upset about allow gay 'marriage' but did not have any objection to a system whereby we would have a civil unions. I asked him if having civil unions that covered both homo and hetero sexual unions in the state realm with letting the churches define 'marriage' for the non state realm would be acceptable and he thought that would be fine.
It is simply a matter of how we as a society treat each other.
Man, my hands are cold and I sure made a lot of typos and grammar errors in my last post. I should have done the proof reading BEFORE I posted :-)
"particularly in light of the extensive (and directly analogous) case law dealing with miscegenation laws and segregation."
I am virtually certain that race is, hmm, strongly influenced by genetics.
As to whether being gay is a behavior or a genetic trait, well, I understand that the politics have shifted and now the PC argument is that it is genetic. As to whether that is wholly accurate, I don't know.
Obviously other protections - freedom of religion and speech come to mind - relate to behavior, not genes. I would think a better analogy would come to mind as well, and maybe that enhanced analogy will explain why the Mormons were forced to abandon polygamy, and how long that cultural bias and discrimination is likely to persist.
As a related aside - the case can be made that when the Supreme Court struck down the miscegenation laws with Virginia v. Loving in 1967 it was *not* an activist decision - many states had struck down their own laws and the Congress had passed the Voting Act and the Civil Rights Act, so arguably the Supreme Court was deliberately following rather than leading. (They had ducked miscegenation cases in the 50's).
In the current day, that means that a responsible Supreme Court would at least wait until the Defense of Marriage Act was repealed by the heroes in Congress.
Tom Maguire
The problem, Steve K., is that it shouldn't be fine for your Cousin.
First, the state converts all civil marriages to civil unions, and somehow gets the Federal government (against DOMA) and other states to accept (at least) the heterosexual civil unions as being equivalent to marriage. Then, the churches can marry people to their hearts content, placing any restrictions (no divorcees for Catholics, no liberals for the Southern Baptists, etc).
However, there are churches that your cousin would find wrong! The UCC and MCC would be able to marry gay people in holy matrimony! Muslims could marry multiple women! Some cult could marry their dogs! Since they are getting married within their religion, and religions would control marriage, there would be absolutely no control over marriage.
Your cousin could say those people weren't married in the eyes of the Catholic church, but he couldn't say they weren't married.
Myself? I would laugh and marry my own boyfriend, while quoting Star Wars: "The more you tighten your grip, Tarkin, the more star systems will slip through your fingers."
SteveIL does not believe in checks and balances.
I am virtually certain that race is, hmm, strongly influenced by genetics.
Tom, even putting aside the fact that every single gay person I've ever met has been sure they've always been gay (whether its genetic or congenital or whatever), this distinction is still irrelevant. As you point out yourself, religion is definitely a choice. But imagine we had a law that prohibited people from different religions from marrying or prohibited people from one religion from marrying each other. That would be instantly struck down as a violation of equal protection. Sexual orientation (whatever its causes) is clearly as central to someone's identity as religion or race.
As the for the Loving decision, your affirming my prediction. Within a very short period of time, this issue has progressed dramatically. We now have a handful of states where gay marriage is legal and several where it has been approved by legislature. 10 years from now, that number will be significantly higher and the overal national landscape will look much like it did when the Loving decision was handed down. I don't expect that the Supreme Court will lead on this issue, but it will follow, and it will do so within the next decade.
If you are going at all on precedent, the case for same sex marriage is decided entirely based on Loving v. Virginia, where the Supreme Court found that marriage was a fundamental right. Because it's a fundamental right, the statee cannot restrict it unless it shows the restriction is narrowly tailored to a compelling state interest. There is no way a state would ever be able to prove prohibiting gays from marrying was a compelling state interest. Also, arguments about procreation, etc., fall by the wayside, as limiting the right to marry is not narrowly tailored to a governmental interest in procreation, etc. So, I have to agree that eventually the US Supreme Court invalidates restrictions on marriage equality, but I'm not sure about the 10 year period referenced above.
I used to read SteveIL's stuff and think, "Now here's a Righty guy who makes some valid points, understands issues, has a firm grasp of positions, etc."
Now I just see another hack defending tired dogma.
I am virtually certain that race is, hmm, strongly influenced by genetics
Oy vey. Genes determine genetic variation in humans. "Race" is determined by humans. Cf.
However, I don't think the equal protection argument is as straightforward as you make it out to be. . . .
If marriage is defined in this way, there is no equal protection problem – a gay man has the same right to marry as a straight man; marriage just has a meaning that does not appeal to him.
But the same exact thing was true of miscegenation laws. If marriage is defined as a union between two people of the same race, black people had the same right to marry as white people. And they were both equally prohibted from inter-racial marriage.
But obviously that argument didn't cut it. Look, I'm a litigator who is very familiar with constitutional law. I realize that there are semantic, legalistic arguments one can raise in defense of equal protection challenges.
But the same was true in Loving v. Virginia. All I'm saying is that future generations will view these arguments as frivilous and unpersuasive. Underlying this issue is a very fundamental and easy to understand equal protection argument. And that argument will eventually win out on the federal level. Trust me.
AL:
You can say that comparing gay marriage probitions to miscegenation laws is an apples to oranges comparison, but I guarantee you that future generations won't see it that way.
Since when were unelected judges allowed to guide the rest of us on what is right and what is wrong? Isn't that what "we the people" are supposed to do? And by what criteria will these unelected judges guide the rest of us? Those set up only by the left?
As Tom Maguire pointed, the decisions that overturned many of the misegenation laws happened after Congress passed the Civil Rights Act, the Voting Rights Act, etc. That isn't going on here.
Anonymous (11:41am):
The gay community cannot “force” you to change your opinion on the nature of marriage.
They absolutely will do that. After Prop. 22 was overturned in California, there was going to be an attempt by LA County to force county employees who didn't believe in gay "marriage" for religious reasons to issue marriage licenses to gay couples. If their jobs were threatened as a result, that is due to discriminating against someone due to their religion. That not only violates the equal protection clause being used to justify gay "marriage", but violates the freedom of religious expression clause. That is the result of rulings like this. The slippery slope is that forcing acceptance will extend beyond public employees, and into religious institutions that will not recognize gay "marriage".
Anonymous (11:44am):
Again, Steve, please explain to us just how straight marriage is "harmed" in any way, shape, or form by gay marriage.
It's an additional and unnecessary harm to the institution, to go along with no-fault divorce and welfare laws (those have destroyed the idea of families in poor communities). Marriage isn't about sex but on setting up a family structure with which to raise children; gay "marriage" is only about sex. Even if a gay couple wants to raise children, a third party is absolutely required, someone not involved in the relationship, which the vast majority of time is not the case with a one man/one woman marriage.
From the post:
Once you accept the premise that there is nothing wrong with being gay (a premise which, I think, the vast majority of people--especially educated people like judges--accept),...
There are millions upon millions of well-educated people who don't agree with gay "marriage". Education has nothing to do with it but values.
I don't want to get into the differences between miscegenation and same-sex marriage; I'm sure you're familiar with the arguments courts have made in distinguishing them. I think most people would accept, though, that gender is much more central to the essence of how marriage is (currently) understood than race ever was.
Regardless, I don't doubt that you're right in saying that courts will eventually accept the equal protection argument; but I don't think it's because the argument has independent strength. Future generations will see it as self-evident precisely because we are doing the hard work, now and in the coming years, of changing people's idea of what marriage is and the role gender plays in it. The courts can play a role by pushing the frontiers, as the Iowa Supreme Court has done, but the real work of entrenching same-sex marriage rights will be done in our public discourse on the issue. Only then will someone like Justice Kennedy feel comfortable enough writing an opinion which disavows the gendered nature of marriage.
Since when were unelected judges allowed to guide the rest of us on what is right and what is wrong?
1610.
This has been another edition of simple answers to simple questions.
Since when were unelected judges allowed to guide the rest of us on what is right and what is wrong? Isn't that what "we the people" are supposed to do? And by what criteria will these unelected judges guide the rest of us? Those set up only by the left?
Steve, have you ever taken a basic civics class? Do you understand how checks and balances work? The role of the judicial branch in our system is to check the legislative branch by determining whether the laws it passes are consitutional. That's their job. In this case, they reviewed a law and determined that it violated the equal protection clause of the Iowa constitution. Whether you agree with that ruling or not, the argument is very straight forward. Legislatures in this country cannot just pass any law they want. They can only pass laws that don't violate the constitution. And the role of Supreme Court is to determine whether those laws are in fact constitutional.
As Tom Maguire pointed, the decisions that overturned many of the misegenation laws happened after Congress passed the Civil Rights Act, the Voting Rights Act, etc. That isn't going on here.
So is it your position that the courts' reasoning in these cases only became correct after some states began changing their laws? Does that make any sense? If something is unconstitutional, it's unconstitional.
Also, as historical matter, the move to end miscegenation laws began just like this, with various state Supreme Courts striking down laws. Eventually the Supreme Court did the same. The same thing will happen with gay marriage.
Happy but Cautious:
The courts can play a role by pushing the frontiers, as the Iowa Supreme Court has done,...
Again, I have to ask by what right do the courts have a say in "pushing the frontiers" of society?
Let me reverse it. Suppose a judge in Vermont overturns their law recognizing gay marriage based on their own values (and couched in legalistic language) instead of the Constitutions of Vermont and the U.S., just as these Iowa judges have done. Would they be right in doing so?
The courts can play a role by pushing the frontiers, as the Iowa Supreme Court has done, but the real work of entrenching same-sex marriage rights will be done in our public discourse on the issue. Only then will someone like Justice Kennedy feel comfortable enough writing an opinion which disavows the gendered nature of marriage.
I completely agree, but I just think much of that "real work" has already happened. I think the real work was convincing people that there is nothing wrong with being gay (and that it's not really a choice either). Once you accept those premises--which most people do--the rest logically flows from it. I think we're in the process right now of our conclusions catching up with our premises. Marriage equality is the logical consequence of beliefs that most of us already hold. That's why we're starting to see more of these rulings, even in places like Iowa. When you're really forced to think about it, the logic is pretty inescapable. And that logic will eventually sway the Supreme Court.
In this case, they reviewed a law and determined that it violated the equal protection clause of the Iowa constitution. Whether you agree with that ruling or not, the argument is very straight forward.
No it isn't and that's the point. By what determination did these judges use to figure there was a violation of the equal protection clause of the Iowa Constitution? When have gay couples ever in history had the same rights as a married couple? When have straight couples who are not married had the same rights as a married couple (and I'm well aware of common-law marriage, but those in those kind of relationships are rare, plus most states don't allow a contract for one)? There was never "marriage equality", an equality of certain types of relationships, in all of history. That is fact. So, the only other reason these judges could have ruled in the manner they did was to put their values over that of the people, something not in any Constitution.
Do you understand how checks and balances work?
Yes I do. The process of checks and balances failed here because there aren't any on the judiciary when they make unconstitutional decisions like this.
SteveIL, what a bunch of bullshit.
The "activist judge" thing has become a standard talking point for every ruling the wackosphere doesn't like. The judges are ruling on a law that is not consistent with the freedoms endorsed by the Constitution and by precedent. It's their freaking JOB. If the terrified religious wack-jobs want to pass a law restricting "marriage" only for Them, then they need to find one that's consistent with said Constitution and precedent. Good luck with that. And if they don't like the Constitution they can go somewhere more suitable. Afghanistan maybe, or Saudi Arabia.
As an aside, I think this whole argument demonstrates the utter poverty of religious organizations; They cry for the State to come in and enforce their beliefs, because they don't believe their own god or faith is strong enofugh. How pitiul.
Personally I'd like the State to get out of the "marriage" business altogether and ONLY do civil unions for everybody, leveling the playing field so to speak. Then the religious cults can decide who in their church can and can't get "married". But the churches won't accept that because they know their members can - and will - just go elsewhere.
The process of checks and balances failed here because there aren't any on the judiciary when they make unconstitutional decisions like this.
Um, yes there are. You can amend the constitution.
Moreover, you're "historical" point is a dumb one. The same could have been said of interracial marriage or slavery or any other discriminatory practice. Just because we've historically tolerated some form of discrimination doesn't mean that it's right or that it comports with the language of our constitution. Remember, we wrote that "all men are created equal" at a time when many men were slaves. Just because judges have previously lacked the courage to enforce actual "equal protection" under the law, doesn't mean they are wrong to do so now.
The first judge to rule a miscegenation law unconstitutional was just as right as the last one to do so, even if his colleagues had tolerated that form of discrimination for decades.
I really love when a straight person says that they're not sure whether being gay is genetic or chosen. The people apparently who think it's a choice are the ones who've never made it.
So: I grew up with very liberal parents in Toronto, a very liberal city, in a very liberal private school, and then went to a very liberal university (Cambridge) and then a very liberal law school and now live in a very liberal city (LA) in a very liberal profession.
And if you "it's a choice" people think that for a second I'd have made the "choice" to be gay (back when I was a kid), you are frakking morons.
The constant fear of your parents rejecting you, the fear you'll get beaten up in school if your classmates find out, the fear that you'll get beaten up in the streets, the fear your teachers and professors will treat you differently, the fear that you won't get respect, the fear you'll get kicked off your sports team if they find out (I rowed at a very high level)--why on earth would anyone willingly choose this?
And this "it devalues the institution" is such a ridiculous fact-free statement. Okay--how? Quantify it.
Honestly, why on earth people can't be less myopic and look to the countries that have had same-sex marriage for a while (Belg/Netherlands/Canada/Spain spring to mind, along with the more recent South Africa, Norway, and Sweden), and realize that nothing terrible has happened to straight marriage, nothing has happened to divorce, people aren't pressing to marry their turtles or sisters or children.
AL, btw, you rock. I hope one day to be half as good at legal analysis as you. But I'm only a fourth year, so it'll take some time . . .
By the way, the favorite argument of the right that gay marriage will lead to people marrying children and horses miss one vital point, that marriages are only legal with legal consent and children and horses are incapable of providing such consent.
As for polygomy, the lack of an equitable arrangment between the spouses and the not so simple issue of custody and probate would make it a much harder sell (although, to be fair, the Old Testament often features polygomy, so that should appeal to the Leviticus crowd).
genetic or chosen
If nothing else, let's stop using the word genetic. Not all biologically determined/influenced behaviors involve genes.
I worry about students of the law who cannot see that a male citizen of the U.S. has the same rights as other male citizens but cannot see that the Constitution requires that he also have the same rights as female citizens. The same theory, of course, applies to black men having the same rights as white men. And Jews with Baptists.
It really is that simple.
Also, since when is extending a right to one group "disavowing" that right for another group?
There's something about the SSM "debate" that really brings out the drama-queen in straight folks.
BobN, I agree with you. Not one single solitary anti-gay marriage person has made a concrete argument showing how gay marriage actually HARMS straight marriage, apart from religiously based objections that seem to say "gay people aren't actually human beings)
I think the loudest opponents of gay marriage are the types of conservatives who think that straight, white, Christians should actually be the favored group. How else do you explain their obsessive nostalgia about the "pure" United States before the hippies and baby boomers ruined it in the 60's (ie. Civil Rights, Womens Rights, Gay Rights). They wanted to always be top dog, to be the kings of the castle.
Anytime progressives have made attempts to set a place at the table for people who had been traditionally excluded, conservatives freak out and declare that the sky is falling.
Fine. You guys think that it's acceptable for people's rights to be determined at the ballot box, let's start putting ballot initiatives to ban straight marriage. I bet if one such initiative passed, you clowns would be pleading with the courts to invalidate the "will of the people".
BobN:
I worry about students of the law who cannot see that a male citizen of the U.S. has the same rights as other male citizens but cannot see that the Constitution requires that he also have the same rights as female citizens.
Not according to the Supreme Court. In fact, married women have more rights than their husbands when it comes to abortion. See Planned Parenthood v. Casey. That whole equal protection argument being presented by the left in this case is utter rubbish when you factor in Casey, which, like Roe, is worshipped by the left.
AL:
Moreover, you're "historical" point is a dumb one. The same could have been said of...slavery...
No, my historical argument isn't a dumb one. It's quite apropos. In fact, I wonder how a lawyer can completely ignore the 1st Amendment freedom of religious expression clause implications a ruling such as this will have. All that has been done is that what you call "discrimination" of a minority group will become discrimination against a much larger group, the majority of the population.
Also, how was slavery ended? The last time I read, it was ended by an amendment to the Constitution, not by judicial fiat.
SteveIL:
"Since when were unelected judges allowed to guide the rest of us on what is right and what is wrong? Isn't that what "we the people" are supposed to do? And by what criteria will these unelected judges guide the rest of us? Those set up only by the left?"
I actually read all 69 pages of the opinion. I can tell you it's one of the most well-reasoned pieces of legal writing that I've ever read.
A ruling like this makes me proud to live in a country where the tyranny of the majority can be quashed. There is nothing more democratic than a third branch of government, insulated from the pressures of elections, that can make sure that equal protection of the laws is achieved. This is exactly what the judiciary was created to do. The judiciary reviews and, yes, even creates law. This concept is centuries old.
I understand the confusion on equal protection - it is not a concrete concept. However, as the Iowa Supreme Court, through Justice Cady says, the right of a gay man or woman to marry someone of the opposite sex is no right at all. In this instance, equal protection of the laws means that two consenting adults must have the same ability to enter into legally sanctioned monogamous relationships irrespective of their sexual orientation. If the people of Iowa wish to change this, they may amend their constitution. This is our democratic-republican form of government at its most basic level.
The time will come to look back and realize how utterly maddening this whole debate has been; when we will realize that marriage is a fundamental right for all, not just straight couples. That time is not now.
While I believe that the opposition to gay marriage is either abating (or dying off), now is the time to engage others in constructive conversations about gay marriage and stop the petty name calling. The only way that gay marriage will become a national reality is through education and measured, reasoned support like that of the Iowa Supreme Court today.
I wonder how a lawyer can completely ignore the 1st Amendment freedom of religious expression clause implications a ruling such as this will have. All that has been done is that what you call "discrimination" of a minority group will become discrimination against a much larger group, the majority of the population.
Steve, this is such a ridiculous argument, even for you. We're talking about civil marriage here, not religious marriage. Civil marriage laws have no bearing at all on what sort of marriages religous groups have to perform or recognize. In fact, if there was a religious aspect to civil marriage, that itself would violate the "establishment" clause of the First Amendment.
Marriage as a legal institution has nothing to do with religion and it can't, by law. Also, explain to me how allowing civil marriage between same sex couples discriminates against anyone, much "less the majority of the population." What rights do you lose? How is your right to practice your religion in any way affected? That doesn't even make sense.
Many people defended miscegenation laws on religious grounds. Was their right to practice their religion somehow infringed upon when courts struck those laws down? If not, how is this situation any different?
No, my historical argument isn't a dumb one. It's quite apropos. In fact, I wonder how a lawyer can completely ignore the 1st Amendment freedom of religious expression clause implications a ruling such as this will have. All that has been done is that what you call "discrimination" of a minority group will become discrimination against a much larger group, the majority of the population.
So, wait.
No one is requiring that gay marriages be sanctioned or performed in churches.
No one is requireing that you, personally, consider gays to be married.
The only requirement is that the Government, a secular institution, treat all people equally and extend the same legal recognition to same-sex marriages as opposite-sex ones.
How is this discriminatory against religion? It's like saying that the FDA is discriminating against religion because it doesn't demand everyone follow Kosher.
Some people aren't members of your religion and therefore you have no right to apply your religious rules to their lives.
"In fact, married women have more rights than their husbands when it comes to abortion."
Get back to me when you're in your first trimester and we'll discuss it.
But thanks for demonstrating an utter inability to remain on point. You think distraction works in your favor. All it does is drive the undecided away from you.
SteveIL:
"Marriage isn't about sex but on setting up a family structure with which to raise children..."
I'm a middle-aged man uninterested in fatherhood. My partner is a post-menopausal female. By your reasoning, we should be banned from having a wedding ceremony and callingeach other man and wife, if we choose to.
But of course that's not the case. So please take another crack at explaining a rationale behind banning gay marriage that doesn't ultimately rely on bias against gays.
This post has been removed by the author.
But of course that's not the case. So please take another crack at explaining a rationale behind banning gay marriage that doesn't ultimately rely on bias against gays.
He can't, because there isn't one.
Its all smoke and mirrors, "Family Values" and that crap, and the Religious Right can't stand that Bush/Cheney screwed the country so bad that swing voters don't give a sh*t about social issues anymore.
You can't spend too much time worrying about the gay couple down the block when you're worried your house is going to be foreclosed.
Except for SteveIL, who seems to have a lot of free time.
SteveIL
"Also, how was slavery ended? The last time I read, it was ended by an amendment to the Constitution, not by judicial fiat."
From the Des Moines Register :
"Supreme Court Justice Mark Cady, who wrote the unanimous decision, at one point invoked the court’s first-ever decision, in 1839, which struck down slavery laws 17 years before the U.S. Supreme Court upheld the right of a slave owner to treat a person as property."
Looks like today's Fiat can be yesterday's Chrysler, eh?
Well said, AL.
The anti gay marriage bigots know that, in the long run (failing the collapse of civil society and the rise of fundamentalist religious states) they're going to lose on this issue. And their descendants are going to look back on them the way that we look back on great grandparents who supported segregation or denying women the vote or other basic unjustifiable discriminatory policies of the past.
They know they're going to lose, so why make such a fuss about it?
Because they don't want to ever have to live with gay people being treated as equal. They want the current generation of gay people to be treated as second-class citizens as long as possible. Because they really, deep down, hate gay people. They do not see them as equal human beings, they see them as dirty perverts and they're determined that they get to punish them for it for so long as they can get away with it.
These "values" voters are quite the opposite.
AL:
Steve, this is such a ridiculous argument, even for you. We're talking about civil marriage here, not religious marriage.
So you throw back my supposedly "ridiculous" argument with a ridiculous argument of your own? A marriage (one man, one women) is a marriage is a marriage. You don't get married by a priest or pastor and then have to get married again by a government official.
Regardless of what you think, marriage has always been a religiously-based institution. The privileges afforded to married people has always been recognized. It was extended to those men and women who wanted the financial (and other) benefits of marriage without being tied to a religion. But those privileges relate to contractual obligations, not the institution itself. Luke had said above:
Personally I'd like the State to get out of the "marriage" business altogether and ONLY do civil unions for everybody, leveling the playing field so to speak.
Believe it or not, I'm inclined to agree. But to do that, legislation needs to be passed, something the left is incapable of doing, preferring to hijack the institution through the courts and letting a judge do the work for them.
Also, explain to me how allowing civil marriage between same sex couples discriminates against anyone, much "less the majority of the population." What rights do you lose?
How about someone's right to keep a job they already have? As I mentioned, LA County was planning on forcing county officials to issue marriage licenses to gay couples regardless of the religious beliefs of the officials. That is a 1st Amendment violation. If any county employees had been fired, that would have been discriminated, even under the California Constitution.
BobN:
But thanks for demonstrating an utter inability to remain on point.
You were the one who said men and women have the same rights. I just showed that you were wrong.
Tom:
I'm a middle-aged man uninterested in fatherhood. My partner is a post-menopausal female.
As am I, except that my wife is a post-menopausal female.
So you throw back my supposedly "ridiculous" argument with a ridiculous argument of your own? A marriage (one man, one women) is a marriage is a marriage. You don't get married by a priest or pastor and then have to get married again by a government official.
That's because priests and pastors are *specifically granted* the power to oversee a civil marriage by the government. That's what signing the registry is signfying; that's why you fill in paperwork that's submitted to the government indicating your marital status. The pastor is overseeing the religious ceremony, and at the same time witnessing the civil requirements; two different things. Are you really not aware of that?
You can absolutely get married outside of a church with no religious authority present. That's a marriage too, you know.
Steve,
Thank for so effectively demonstrately how weak and nonsensical the arguments against marriage equality are. I love this:
Regardless of what you think, marriage has always been a religiously-based institution.
That's not even remotely true. First, and most obviously, marriage is not now a religious institution. Atheists have the same rights to marriage as everyone else. If it civil marriage were a religiously-based institution, it would unconstitutional.
Moreover, even historically, marriage was not about love or religion. It was about property. It was a way of arranging families so as to ensure transfer or property from one generation to the other. Also women were essentially purchased in most instances. Marriage predated all of the modern religions.
As for this:
How about someone's right to keep a job they already have? As I mentioned, LA County was planning on forcing county officials to issue marriage licenses to gay couples regardless of the religious beliefs of the officials.
That's just dumb. If a DMV worker doesn't want to give driver's licenses to gay people, is that okay too? Would it be problemnatic to fire them? If you work for the state, you have to follow the law. That's it. End of story. If you don't like it, get a new job.
Steve, pulling out the aggrieved Christian card says "How about someone's right to keep a job they already have? As I mentioned, LA County was planning on forcing county officials to issue marriage licenses to gay couples regardless of the religious beliefs of the officials. That is a 1st Amendment violation. If any county employees had been fired, that would have been discriminated, even under the California Constitution."
So, if a Muslim employee refused to give a Jewish person a marriage license based on their religious beliefs, would that ALSO be protected by the 1st Amendment?
Again, Steve, no one is forcing you to suck another man's cock, although judging by the ferocity at which you're arguing this, I would bet that you probably at one time have wondered what it would be like, and you sublimate such feelings through the expression of homophobia in the name of "freedom"
BobN -
I worry about students of the law who cannot see that a male citizen of the U.S. has the same rights as other male citizens but cannot see that the Constitution requires that he also have the same rights as female citizens. The same theory, of course, applies to black men having the same rights as white men. And Jews with Baptists.
You misunderstood the point I was making. It isn't about whether people have the same rights or not; it's about what the right is. Up until the last few years, the right to marry has had a meaning that was fundamentally gendered - to be married was to be involved in a legal relationship with a member of the opposite sex. As I explained before, I don't think the race analogies are very persuasive because, while anti-miscegenation laws did exist in some places for some periods of time, marriage was never fundamentally defined by race the way it always has been by gender. The fact is, the shift to legalizing same sex marriage is simply a bigger change than the shift away from anti-miscegenation laws. I am personally very happy that we are making this shift and am pleased it has taken a step forward today, but I don't think it is "really that simple" - simply speaking in terms of equal rights ignores that we are talking about shifting conceptions of an institution. I think that people who are supportive of gay marriage ignore this at their peril - Prop 8 is a perfect example of what can happen when the gay rights movement harps simplistically on equality in a tolerant state without making the argument about why marriage law should be extended to gays.
Also, since when is extending a right to one group "disavowing" that right for another group?
Again, you misunderstood me. I certainly do not believe extending marriage to gays "disavows" the marriage rights of heterosexuals in any way - the "defense of marriage" argument made by conservatives is highly silly. What same sex marriage rights do, however, is disavow the gendered nature of marriage as it has been traditionally understood. I'm all for that, but I think we should recognize that we are changing an institution.
If you look to how much the Supreme Court of Iowa relies on federal cases, scholarship discussing federal law, and federal principles of constitutionalism, it should be quite obvious that the decision may be properly appealed to SCOTUS. State Tax Commision v. Van Cott, at 306 US 511, makes that clear. http://altlaw.org/v1/cases/380906
If a DMV worker doesn't want to give driver's licenses to gay people, is that okay too? Would it be problemnatic to fire them?
I see. Marriage and driving are the same thing.
If you work for the state, you have to follow the law. That's it. End of story. If you don't like it, get a new job.
That's discrimination. Coming from someone who claims to hate discrimination, I would be surprised. Coming from someone on the left, I'm not surprised at all.
That's not even remotely true. First, and most obviously, marriage is not now a religious institution.
Only to someone who is revising history.
Moreover, even historically, marriage was not about love or religion. It was about property. It was a way of arranging families so as to ensure transfer or property from one generation to the other...Marriage predated all of the modern religions.
Marriage was always a religious institution, even with those religions that are dead and gone, and marriage was concerned with procreating the next generation with which to transfer property (and whatnot) to. Stop rewriting the history.
Steveil,
Do tell us the written evidence for your assertions. Most sociologists consider the modern concept of officially-recognized marriage to date from about 1550 (and even then it was more a civil and contractual affair than religious). This hardly qualifies as "always".
If you would like to ameliorate your ignorance, a free and relatively accurate discussion can be found at wikipedia.
I don't imagine you'll bother, and I sympathize. I know how painful it is to be confronted with facts that contradict your fondest beliefs.
SteveIL: just saying something (e.g. marriage has been a religious institution) doesn't make it true, you know. You don't refute A.L.'s point either that marriage currently is not a religious institution (I'm atheist and if I could get married I'd do it at city hall) or his point that marriage historically has been a property arrangement.
Your also cry discrimination when an employee of the state is forced to issue a marriage license to a gay couple, notwithstanding their religious belief, but let's say that a catholic state employee refused to issue a marriage license to a straight couple based on the fact that one of the two had been previously married. Or because one of them is Jewish and the other Catholic, and the Catholic employee doesn't believe that Catholics should marry Jews. Would that be okay? Of course not. Please explain how this is any different from the example of a gay couple seeking a license in a state where it's legal.
It simply is not discrimination to require employees of the state to enforce the laws of the state.
But let's use real world examples. Please cite to us a single example of how gay marriage has harmed civil society or demeaned or threatened a straight marriage in Canada. It's close enough in terms of culture and values (and, indeed, many US states have far more in common with Canada than they do with the South.)
You can't.
Steve,
Just out of curiosity, how much time a day do you spend commenting on blog posts?
While I almost always disagree with your poorly reasoned positions, the quantity of your response output never ceases to amaze me.
Also, as a tie in to the conversation, I was wondering if you know any gay couples?
AL started out this comment thread a bit weak but came back strong. I give it a 9.3.
Trolling was subpar.
Incidentally, my legal instincts tell me that the civil/cultural distinction is ultimately the gamewinner in this argument, largely due to its conceptual simplicity
Note that while the Iowa SC decision is equally devastating (and correct) on the other matters, this thread makes it clear that even the obviously-true analogy to interracial marriage is not as effective. It's worth considering why that is the case.
If you work for the state, you have to follow the law. That's it. End of story. If you don't like it, get a new job.
That's discrimination.
Haaaahahaha
"The DMV fired me for denying a Hispanic guy his license! Everyone knows Mexicans can't drive! WHY ARE THE DISCRIMINATING AGAINST ME JUST BECAUSE I'M A RACIST"
It is a shame that with a Democratic President and a Democratic House and Senate, we have to leave these equality issues to the courts.
What is more important than equality? Why can't we get some legislation from our so called progressive Democratic party? Why can't they repeal DOMA and "Don't ask don't tell"? It is easy to blame the right wing when the fault really lies with the Democratic party.
It is rather ironic that on progressive issues like equality and civil liberties (Glenn Greenwald has been compliling a list of these) the Obama administration has been blocking real prgress and that the progress is coming from our courts.
Any of you liberals want to take a crack at this?
To SteveIL,
Where did you get you education? Courts have a constitutional right to mandate changes in legislation whenever the courts percieve an injustice afficting the general or specific populations they are appointed (sometimes elected) to serve. Courts may be the first or the last body of interest that has the legitimate duty and right to clarify if not alter unjust legislation. At times the courts need to be "on the front line" on justice issues because the executive and legislative branches refuse to pick up and clarify the issue(s) needing change.
I learned this at 16 years of age--thanks to some very astute educators.
"By what determination did these judges use to figure there was a violation of the equal protection clause of the Iowa Constitution?" - Steve
Steve, READ THE FUCKING CASE.
Then, and only then, are you allowed to comment on the reasoning. Do you realize how moronic it is to criticize the court's reasoning when you haven't even looked at it?
Full text, in pdf format, can be found here: http://www.glad.org/uploads/docs/cases/varnum-opinion-4-3-09.pdf
AL - Thanks for starting this with such an outstanding post, and then remaining so thoroughly, politely, intelligently engaged with Steve, who should also be thanked for his determined advocacy of all the most familiar objections to same-sex marriage. It's certainly possible to imagine a more logical, better educated devil's advocate, but it would be hard to find one so tireless, or apparently sincere. Your shared commitment to arguing this issue in a civil, coherent, equally relentless manner has provided the best discussion I've read, seen or heard on the subject in any forum. The overwhelming legal, logical and factual superiority of your arguments in no way detracted from the importance of answering the points and objections of those, like Steve, who may never accept the absolute unconstitutionality, the intrinsic unfairness, of their passionately held position.
I often regret the less-than-prolific nature of your blogging, but with this crucial post and remarkable thread, all is utterly forgiven! Best regards.
Just read the 69-page Iowa case. Brilliant stuff. Should be required reading for, well, everyone. And anyone who is still against SSM after reading it is an idiot, a bigot, Steve, or all three.
I got a lot of information
correspondence courses
The same sex marriage conflict would be reduced if religious and civil marriage were separated in the law. When conservatives argue that marriage is sacred and that same-sex marriage threatens its sanctity, they are using religious terms to defend a civil institution that no longer enforces the sexual morality central to religious understandings of marriage. Ideally “marriage” would apply only to religious unions, performed by clergy, while “civil unions,” performed by civil servants, would describe the legal unions contracted by both same-sex and opposite-sex couples. Couples could enter either or both of these statuses.
The irony of this whole "Marriage is a religous institution so gay marraige is wrong!" is that there are many churches that would marry gay couples! My partner and I were approached by a minister interested in performing our ceremony - we didn't approach her. So really...the argument is null and void, because even with discriminatory laws, and if we went with the right-wing nutjob theory that only if it happens in church can it be called a marriage, my partner and I could get married. Now....are those religious fanatics now going to impose their religious views on other religions, or other members of their own religion that don't agree with their opinion?
The real argument here is that this is all about semantics.
You put up Civil Union laws to a vote, and they'll pass in most places. As a matter of fact, I'd be happy if the word "Marriage" was pulled from all government laws and replaced with "Civil Union", since the "Civil" aspect of it is all that should matter to the Government.
The government shouldn't "allow" people to marry. "Marriage" is not something the government gives you the "right" to do. You have that right, the freedom to associate and contract with each other and call it whatever the heck you want. But you don't have the right to use the coercive power of government to "shape" society.
My way, the legal union of a Man and a Woman, a Man and a Man, a Woman and Woman, A man and six women ... whatever ... is a legal contract. Then everyone is free to call it whatever they want, and there's no legal recourse to prosecute someone for "hate speech" if their opinion is that any of these unions are wrong.
The bottom line is gays want acceptance. They have tolerance. They want acceptance. These are not synonymous. A codified, legal definition of "Marriage" expanded beyond what it has been forever would give them a legal tool to try to force this. This is what the activist are after.
People who believe that homosexuality is wrong, or that unions between two people of the same sex are invalid or not "Marriage" are following their own Constitutionally protected freedom to practice their religion, and their freedom to express that opinion is also guaranteed by that same First Amendment. The intent here is to effectively deny one or both of those guaranteed rights in an attemt to coerce acceptance.
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