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April 20, 2005

Comments

what if the law already implicitly makes it legal (by not explicitly forbidding it) ? is it activism if a judge simply tells points this out ?

(note: not rhetorical questions)

This isn't civil marriage; it explicitly forbids civil marriage for gay couples. I hope to see real equal marriage rights through legislation in New York sometime within the next 4 years. I think von's whole dismissive about "activist judges" "changing the definition of marriage" rests on an indefensible theory of Constitutional interpretation. And an amendment that does the same thing as this law is likely to be rejected by a majority of the state legislators and/or the people of Massachusetts.

For all that, this is real progress. Bravo to the legislature; brava to Connecticut's Republican governor.

Von: I am part of the small minority of folks who (a) support gay marriage but (b) believe that this redefinition of the marriage laws should be done through the legislature, and not through a judicial ruling.

Hm. More accurately, I think, you're part of a small minority that thinks change in the marriage laws in the US could happen without judges first pointing out the way to go. Yes, it would be better if the legislature acted rightly in the first place: but as others have already pointed out, without "activist judges" ruling that bans on interracial marriage are unconstitutional, there would still be some Southern states in the US willing to keep such unions illegal.

Hey...as recently restored to CT from WV resident Martha would note, overall "it's a good thing!"

Von, I agree with you that "redefinition of marriage laws" should be done in the legislative, not judicial branches. The question is whether existing marriage statutes violate equal protection guarantees. This is surely a matter for the judiciary, as Hamilton so eloquently set forth in Federalist 78.

You may disagree with the conclusions, but please don't start down the road of saying that courts should not be adjudicating whether a statute unconstitutionally deprives a person of his/her rights.

If a policy is equitable, and if none of the current laws forbid it, then why is it illegitimate for a judge to point this out? I think cleek's got a very good point here...

Seeing this done through the legislature might work on a state level in the northeast, but until Republicans elect the kind of representatives who don't scuttle ethics legislation, the courts are the only way this will happen across the nation.

I think Von is distinguishing (1) whether the courts *can* hold gay marriage protected by a state's constitutional provisions, even where the drafters of those provisions had no such intent, and (2) whether it's *politically prudent* for the courts to do so.

You can argue that (2) shouldn't be a consideration for the courts, and you may be right, but it can certainly be a consideration for those of us who aren't judges and who want to see gay civil rights protected without a legislative backlash.

And Edwards "Box Turtles" crawl closer by the day.

""David Chambers, a professor of law at the University of Michigan, wrote in The Michigan Law Review that those who support plural marriage ought to also support gay marriage. He argued that rather than reinforcing a two-person definition of marriage, gay marriage would make society more accepting of further legal changes: "By ceasing to conceive of marriage as a partnership composed of one person of each sex, the state may become more receptive to units of three or more." Similarly, Alternatives to Marriage Project activist and University of Utah law professor Martha Ertman noted in The Harvard Law Review that legal and social opposition to polygamy is decreasing and that increasing acceptance of homosexual partnerships is slowly (and, to her mind, rightly) resulting in the final destruction of the traditional marriage ideal.""

http://students.law.umich.edu/mlr/
http://www.nationalreview.com/comment/basham200504180745.asp

And Edwards "Box Turtles" crawl closer by the day

either put a smiley face after that or clarify please.

In an earlier thread, Edward had dismissed legitimate concerns that the reasoning behind SSM is identical to the reasoning for polygamy.
He had done so with a causally dismissive approach of
(paraphrase) "or marry your pet box turtle"

:) :) :) :) ;)

you can address me directly Fitz...I asked you the question.

Edward had dismissed legitimate concerns that the reasoning behind SSM is identical to the reasoning for polygamy.

And I still do dismiss those concerns, but I don't consider them legitimate. They reek too much of the arguments people offered for why inter-racial marriages were "wrong."

"legal and social opposition to polygamy is decreasing and that increasing acceptance of homosexual partnerships is slowly (and, to her mind, rightly) resulting in the final destruction of the traditional marriage ideal"

Which just lends urgency to the question, What Dog Does The State Have In The Marriage Hunt?

My answer is "none." The state should care less whether A and B, or A, B, and C, or whoever, "get married." What's it to 'em?

Where the state begins to have an interest is when children are involved, in which case tax breaks, etc. become valid policy.

Alas, marriage is so intertwined with the law that it would be difficult to make any state marriage-neutral; but if we were designing things from the ground up, I think that would be the way to go. If you want to marry your box turtle & can find a self-professed cleric to conduct the ceremony, then congratulations. Just don't think you're going to get a break on your income tax.

Where the state begins to have an interest is when children are involved, in which case tax breaks, etc. become valid policy.

So you would argue that childrenless married couples should have no benefits unmarried couples don't have?

The law is about line drawing (be it the morall or secular law)
While ANY male female couple MAYNOT bare children.
EVERY same sex couple CANNOT bare children.

So you would argue that childrenless married couples should have no benefits unmarried couples don't have?

Yes, I'm tossing that out there & seeing what more policy-savvy folk than myself can do to shoot it down.

A and B are married and live together. C and D aren't married, are in a relationship, and live together. E and F aren't married, live together, and are just roommates. None has any children.

For what purpose should the state discriminate between these pairs, if any?

"While ANY male female couple MAYNOT bare children.
EVERY same sex couple CANNOT bare children."

Fitz, I think anyone who bares children is asking for trouble these days. Just ask Michael Jackson.

The law is about line drawing (be it the morall or secular law)
While ANY male female couple MAYNOT bare children.
EVERY same sex couple CANNOT bare children.

you know where this leads already, so why not account for it in your rebuttal? specifically, what about adoption?

Fitz: "EVERY same sex couple CANNOT bare children."

Leaving aside the many possible jokes that your spelling suggests, this is just wrong. I know lots of lesbian couples who have borne children.

I think we need to assign numbers to certain arguments and their refutations, so that when Fitz says "but gays can't bear children," Edward can just say "26!" and link to the "26" page, with its teeming comments on what a non-argument Fitz has made. Like the story about the old-timers who have numbered their old jokes so they can just say "52!" and everyone laughs.

Of course, Fitz and I may be in agreement (!) on one thing: the legal perks of marriage may well be premised on assumptions about marriage as equivalent to child-rearing. But obviously those assumptions aren't valid, and today are less valid than ever. So let's treat marriage as marriage and child-rearing as child-rearing (why am I thinking of Michael Jackson again?), and go from there.

""is is just wrong. I know lots of lesbian couples who have borne children. ""

Impossible for a lesbian COUPLE to have borne a child.

Impossible for a lesbian COUPLE to have borne a child.

you're confusing "bear" with "conceive" Fitz.

Gosh, Fitz, if we're going to get that far into semantics, here's a novel argument for same-sex marriage: no man can bear a child at all, so only women should be allowed to marry.

The couple did nothing. One individual of the couple might have conceived a child with a man (directly or indirectly) but the couple (of lesbians) did not bear a child together.

Its hardly semantics, its the natural law.
"Of gods nature and nature's law" DofI

it's nature's law that men bear children?

that's what you're arguing Fitz...semantics do matter.

but the couple (of lesbians) did not bear a child together.

I assure you that the other mother is as emotionally involved as a conceiving father would be. In the case of infertile men, where a donor's sperm is used for a heterosexual couple, there is no difference.

The couple did nothing.

You've never done this before, have you?

One individual of the couple might have conceived a child with a man (directly or indirectly) but the couple (of lesbians) did not bear a child together.

My wife and I adopted two children together; are we somehow invalidated? Your logic here is unclear.

Its hardly semantics, its the natural law.

I'm not a big fan of cites of natural law. There's how things are, and then there's our interpretation of it. Which one are you referring to?

Edward, we a trying to insure that every child grow up with his natural mother and father.
Barring that, that they grow up with a mother & father.

You know what we are advocating for.
It is your side that hopes to blur natural distinctions, and plays sematical games to do so.

Fitz, as someone who works with complicated statutes on a daily basis (i recommend California's Water Code and Government Code as cures for insomnia), please provide a statute book for "natural law".

and btw i'm agnostic, so i'd prefer you not use any religious sources. given the establishment clause, i actually insist that you not use religious sources.

hooray for CT politicians.

drafting a civil union statute for polygamous unions would not be trivial. I imagine that dealing with the underlying assumption that will exist throughout tax and health codes that there is one and only one partner would be quite difficult.

but since polygamy has a rich history, as reflected in the bible, i'm kinda surprised that fitz objects to it. Didn't the kings of israel have stacks of wives?

Edward, we a trying to insure[sic] that every child grow up with his natural mother and father.

Who's "we", and why do you care?

Fitz, what you really want is that no children should have homosexual parents, correct?

Francis,

Not just kings, but patriarchs, too (think of Jacob being married to both Leah and Rachel, and only 1 week apart).

hooray for CT politicians.

Hey, how about some cheers for us CT residents? Heaven knows the politicians wouldn't have done this if they thought they'd get voted out because of it.

http://www.jrf.org.uk/knowledge/findings/socialpolicy/SP4.asp

http://mi.essortment.com/familyamerican_raxa.htm

http://www.2-in-2-1.co.uk/books/costfam/

http://www.rmfc.org/fs/fs0057.html

http://www.fotf.ca/familyfacts/analysis/020101.html

It goes on & on
We care because you people dont

26!

Edward, we a trying to insure that every child grow up with his natural mother and father.

And I'm trying to ensure there's enduring world peace. In the meanwhile, though, we both have reality to deal with. Gay Americans HAVE children. The natural desire (since we're in that realm now) is no less great for many gays to procreate than it is heterosexuals. If the urge is strong enough, gays will find a way (and should).

Your priorities would force the straight partner they had those children with to live with someone attracted to the same sex and all kinds of other scenarios I just can't support.

Your fantasy world shouldn't be permitted to impact their reality.

http://www.jrf.org.uk/knowledge/findings/socialpolicy/SP4.asp

http://mi.essortment.com/familyamerican_raxa.htm

http://www.2-in-2-1.co.uk/books/costfam/

http://www.rmfc.org/fs/fs0057.html

http://www.fotf.ca/familyfacts/analysis/020101.html

It goes on & on
We care because you people dont

Hey, how about some cheers for us CT residents?

You Folks Rock!!!!

We care because you people dont

OK, class: reading assignment. Carefully read each of Fitz's links, compare and contrast their content, and then synthesize into a central thesis.

Or don't. Why should we, if he won't.

We care because you people dont

Fitz, do you have an explanation for us why you think that people who want to adopt a child don't care about children? Serious question here.

Good point, Edward. We could even rewrite Fitz' credo a bit to enhance accuracy:

We care, but not enough to form our own arguments.

We care because you people dont

OK, class: reading assignment. Carefully read each of Fitz's links, compare and contrast their content, and then synthesize into a central thesis.

Or don't. Why should we, if he won't.

My bridge partner Stephanie has adopted a number of mentally retarded children who were being shuttled from foster care to foster care. Did I mention that she is a lesbian? Surely you won't argue that these children would be better off in a new household every couple of months. Surely you won't argue they should go back to their crack-addicted and nearly on the street parents? Right?

As amazing as I think your bridge partner is for what's she's doing Sebastian, I think pushing that argument too far that direction (i.e., gay parents as caretakers for the unwanted children) is problematic. You're not exactly saying what I'm about to note, but it should be clarified all the same.

First, there are plenty of heterosexual couples with hearts just as big who adopt children with disabilities. This generosity of heart should be celebrated and encouraged among all Americans. Second, there's nothing wrong with gay couples who want to adopt more healthy children. The placement should be based on which of the couples interested can provide the best environment for the child. If a gay couple can provide a better home than an interested straight couple (and yes, one needs to consider the [hopefully waning] social stigma of having two mommies or two daddies) they should have a shot at getting that adoption.

We care, but not enough to form our own arguments.

heh.

Edward, we a trying to insure that every child grow up with his natural mother and father.

Fitz, if that is your position, are you advocating that we outlaw divorce?

So, I picked one of Fitz's cites at random and it happened to list all kinds of facts and figures about how well Canadian children who come from heterosexual two-parent households do vs. others. Now, I'm no mathematician, but isn't the trouble with all those facts and figures that there was no control group? I mean, how can you possibly make that comparison without knowing how children would fare had they been left in a home where their parents are so unhappy that they decide to divorce, or with a father who never wanted children in the first place?

Apparently, the folks who wrote the paper agree, because the 2nd most important policy they wish to enact is Collect accurate data on marriage and families: And why is this a priority? Because In Canada we fail to collect adequate data on marriages and families. We know so little about the people who get married or divorced, the family settings children are growing up in, the characteristics common among strong families or the impact of marital status on domestic violence or poverty.

Hmmm, I'd be interested in Steven Levitt's take on this.

So, I picked one of Fitz's cites at random

it wasn't a real assignment crionna ;-)

have you read that Levitt book? Looks very interesting.

Heh.

have you read that Levitt book? Looks very interesting.

Got it yesterday and blew, er spent, lunch reading about how abortion lowered the crime rate and why drug dealers live with Mom. It is very interesting.

Anderson, I don't understand yours of 10:52. I don't see von as having opined one way or the other on whether courts ought to rule on the constitutionality of statutes that permit gay marriage, but I would be shocked to learn that he thinks they should not rule on cases before them, and uphold such statutes.

What I understood from von, and have frequently seen from Mr. Holsclaw and others, is the wish that courts didn't rule on the constitutionality of statutes that preclude gay marriage.

No one has given me an adequate response to the question 'what is a court supposed to do when confronted with such a case, other than decide it.' They wish cases not to be brought, I get it. I wish the president not to pursue drilling in ANWR. Guess what -- my wish is of very little importance to him, but even so it dwarfs the importance Ms. Goodridge placed (and should place) on the wishes of von and others who agree with him.

I've got a million wishes -- for example that everyone would stop watching reality TV -- and could go on at length on why I think life would be better if my wish was granted. At a certain point, though, it becomes clear that I'm not actually talking to anyone who is either watching reality TV or in a position to influence whether others are doing so. Then what am I doing? And why don't I just go ahead and wish for a pony too.

CharleyCarp, I agree I shouldn't profess to know what Von's up to; I was looking for a charitable position that would address his reluctance to have courts decide this issue without pretending that it's never possible & proper for courts to do so.

Courts have some options other than ruling +/-. They can fire a shot over the legislature's bow---"this situation looks bad to us, but we'll give you 6 months to fix it," which I think is what the Mass. court did. (This has also come up in school funding cases, hasn't it?)

And the distinction matters when we're talking about what cases to bring before the courts. Even if they do have to decide a case if it's brought, activists can weigh the dangers of bringing such a case in the first place.

As a practical matter, if the courts get too far in front of the public, bad things will happen.

I have taught special ed for sixteen or so years. Many, many of my kids live in foster care. While in foster care with heterosexual couples, many of them have been neglected, emotionally abused or physically and sexually assualted. On the other hand, absolutely the best foster family I know of is a lesbian couple. They have raised a brood of eight impossible-to-place children and raised them all to be happy, responsible people. I just can't believe that there is any data that would support the contention that gays, just because of sexual orientation, can't be good parents.

"And the distinction matters when we're talking about what cases to bring before the courts. Even if they do have to decide a case if it's brought, activists can weigh the dangers of bringing such a case in the first place."

'We' don't talk about what cases to bring, before they are brought. More correctly, 'our' talking is of no consequence. I think it is a very safe bet that the individual litigants take some time to consider whether or not the risk of backlash is sufficiently great to counsel deterrence, but you have to put yourself in the shoes of the litigant if you want to see what the choice looks like: do I try to get the marriage statute overturned, or do I wait a decade or two more, and see if maybe society has come around. They are not making a long-view social policy decision, they're making a gut-wrenching personal decision of immediate application.

'Ms. Parks, just sit in the back. Society isn't ready for colored folks in the front just yet. Maybe in a decade. Maybe two.'

"As a practical matter, if the courts get too far in front of the public, bad things will happen."

Agreed. Although it's easy for me to agree, because I'm not in a position where bad things are happening to me right now.

"No one has given me an adequate response to the question 'what is a court supposed to do when confronted with such a case, other than decide it."

Well the Supreme Court can typically decline to take cases. And personally my position is not that courts should decline to take the case (I don't care one way or another) but that they should not rule such laws as unconstitutional because they are not.

Agreed, CharleyCarp, but don't underestimate the selective quality of which cases get brought. Rosa Parks, if I recall, was not just a lone woman who took a notion in her head, but rather was part of a deliberate test case. I imagine that's more the rule than the exception. Most people don't have the money to mount a civil-rights lawsuit effectively.

but that they should not rule such laws as unconstitutional because they are not.

OK, I get this wrong all that time, but isn't this actually a textbook example of begging the question?

I don't see von as having opined one way or the other on whether courts ought to rule on the constitutionality of statutes that permit gay marriage, but I would be shocked to learn that he thinks they should not rule on cases before them, and uphold such statutes.

For clarity: if a Federal Court has SMJ to hear the case (and it would over a EPC challenge to a marriage law that excluded gay marriage), the case should be heard and decided.

My position is that the Court should not find that marriage laws that define marriage (expressly or implicitly) as between a man and a woman -- i.e., the marriage laws that currently exist in every state today, at the time of the 14th Amendment's ratification, and indeed since the founding of the Republic -- violate the EPC.

I'm also very glad for the Connecticut law. But let's not kid ourselves: This is still headed for the courts.

It can either be tested proactively by same-sex couples who know what they are getting into, or it can be tested reactively when a lesbian protected by a civil union in Connecticut is severely injured while on vacation in Florida, and the parents try to keep her partner from making medical decisions or transporting her back to Connecticut. If you think there won't still be a backlash, if you think it won't end up being much, much uglier when DOMA and the Focus on the Family and interstate commerce and armchair radiologists and the personal history of the competent partner and picketers on lawnchairs and the Christian conservative character assassination brigade all turn an already messy personal situation into a media circus, I think you are suffering from a failure of imagination.

I'd much rather get a decision on whether equal protection actually applies to these folks than pretend that part of the constitution isn't there for the sake of political expediency, or to avoid a backlash from a bigoted majority (if, indeed, the majority does think gays deserve less protection). There is going to be a backlash, period. The constitution, as written, supports equal application of marriage laws, and a lot of folks have a problem with seeing those laws applied equally. I fail to see how it will help the cause to pretend that this isn't the case. It won't. In fact, it helps the other side's cause, which is why they do it. Splitting the difference the way Von and Sebastian do doesn't get folks elected. Look at John Kerry. Look at Tom Daschle. They both lost by razor-thin margins, in no small part because the other side was highly motivated to get to the polls to keep homosexuals from getting hitched. Yes, there were other issues, but their mushy middle stances on the issue of equal rights didn't help one bit in a situation where every vote counted. Their unwillingness to counter dishonest rhetoric from the anti-marriage crowd hurt this cause, and, in my opinion, hurt their standing as national leaders. The lack of principle involved is readily apparent to voters, and voters care about principles, often more than they care about who is actually right.

Sometimes the majority simply needs to be shamed into doing what is right. A clear ruling on equal protection would help immensely in this regard. And those who decide they want to risk their grandchildren's scorn by becoming the Strom Thurmonds and the Lester Maddoxes of the gay rights struggle, I say force their hand, make them stand up for bigotry and choose to live with that legacy.

I'm sick of providing political cover for hatemongers. It doesn't pay off in the end, it only delays the inevitable.

Frankly, the backlash should be really entertaining. I've been in a few marches behind the straights for gays banner and its been a long time since my last round of civil disobedience. (some of the Op. Rescue counter-protests were pretty vicious.) If CT's gay civil rights movement needs some warm bodies to counterprotest against Dobson's lunatics for christ, i could combine that with a trip to NY city.

It's high time that TV started showing which side is the truly ugly side . . . my patience with haters has flat run out.

I like the spirit of your approach Gromit. Really, I do, but I'm beginning to see what the opposition is willing to do and quite frankly it unnerves me. I'm not at all convinced the good people of this nation are willing to stand up to them.

Look at Texas, where just yesteday another...yes another...law setting gays pariahdom into stone was proposed (this one requires that applicants to be foster parents declare their orientation and even gay couples who've been licensed in Texas for years would lose their licenses). These monsters will stop at nothing.

Every ambitious former used car salesman or pest exterminator willing to stand up and shout that he's only thinking of our children can badger the rest of the legislature into chiseling away at what little social role gays are now permitted to perform. No hyperbole intended, but from my POV, this is hauntingly familiar to what I've read happened in Nazi Germany.

The good people of Texas are letting this happen. If the issue is pressed as you're suggesting it should be nationwide, what's to stop sh*t like that from happening everywhere?

Personally, I've got a realworld concern that makes me unwilling to see how far they'll go to make it uncomfortable for gays in this country. I believe they'll stop at nothing now that they've seen they have a useful scapegoat.

The constitution, as written, supports equal application of marriage laws, and a lot of folks have a problem with seeing those laws applied equally.

Insofar as you mean that the Constitution requires that "marriage" be defined to include any sort of social arrangement that we may dream up*, that's incorrect.

BTW, we interpret all kinds of legal documents according to their meaning at the time they were written (a variation is in patent law, where we interpret patent claims at the time of their invention, which may theoretically be different from the time of the filing of the initial patent application.) Why would we interpret the Constitution any differently?

von

*Although I support gay marriage, keep in mind that it was pretty much "made up" twenty years ago.

It will be interesting to see what's the Going Too Far point in the war on gays. The more the laws are passed and enforced, the more that godfearin' Texans, et al., will see their friends and relatives being victimized by these laws. At some point, presumably, people will say, "enough, leave my Uncle Bernie alone, dammit."

Laws like the one overturned in Lawrence could stay on the books precisely because they were so rarely enforced.

Of course, this will take years, but I do think the anti-gay campaign will ultimately undo itself.

Von: Insofar as you mean that the Constitution requires that "marriage" be defined to include any sort of social arrangement that we may dream up*, that's incorrect.

Which is to say, not at all. Equal protection has a specific meaning. Laws limiting each individual to one marriage at a time do not violate equal protection (maybe the 1st Amendment, but definitely not the EPC of the 14th) since there is a rational basis for discriminating based on marital status. Nor do laws prohibiting incest, nor do age of consent laws. Laws that limit marriage to certain racial or sexual configurations without a darn good reason most definitely violate equal protection.

BTW, we interpret all kinds of legal documents according to their meaning at the time they were written (a variation is in patent law, where we interpret patent claims at the time of their invention, which may theoretically be different from the time of the filing of the initial patent application.) Why would we interpret the Constitution any differently?

This is an argument against legalizing civilian ownership of Stinger missiles, but not against legalizing civilian ownership of semi-automatic handguns. My neighbors Chris and Kevin down the street are at least as close to my wife and me as a Glock is to a musket. Hell, my marriage would be quite alien to the founders in a number of regards: my wife kept her maiden name (to my great pleasure), she works outside the home, we share housework pretty much equally, and we married in a completely secular ceremony. Does this mean my marriage is a made-up institution or that I'm arbitrarily redefining the word? Why is sex a deal-breaker, but not the fact that my contract and property rights don't supersede my wife's, unlike my 18th-century analog's?

*Although I support gay marriage, keep in mind that it was pretty much "made up" twenty years ago.

Was that before or after "gay dance clubs" were made up? I find this line of argument utterly unconvincing. The "gay" part doesn't make it any less a "marriage". It only defines a subset.

Nor do laws prohibiting incest

What's the rational basis for this in the case of, say, adult siblings?

Von, I don't understand why you keep talking about the "definition" of marriage. So far as I can tell, no one is saying that they don't know what marriage is in the statutes, or that they need a court to clarify or revise the definition of marriage.

The state is granting certain substantial benefits to a class of people. It is denying them to another class of people. At issue is whether it may do so consistent with the EPC (state and federal).

And frankly, if the answer is 'yes, because of 1868,' you have to say that Loving was wrongly decided.

The dispute is not about the definition itself (rather than whether or not the state may constitutionally impose the definition that everyone acknowledges it is using). The reason many advocates say that it is about the 'definition of marriage,' in my opinion, is that this sounds like the courts are messing with everyone's legal rights, not just the rights of the few people denied access to benefits under the current state statutory schemes.

Granting the right of gay couples to marry doesn't affect me. "Changing the definition of marriage," inasmuch as I am married, sounds like it might.

And the reason we interpret the Constitution differently from a contract, or a patent, was expressed by Chief Justice Marshall in M'Culloch v. Maryland:

A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American constitution, is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations, found in the ninth section of the 1st article, introduced? It is also, in some degree, warranted by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget that it is a constitution we are expounding.

kenB: What's the rational basis for this in the case of, say, adult siblings?

First, I'm talking about incestuous marriage in particular, not consensual incestuous acts, per se. I realize I didn't make that clear. I'm wholly ignorant of case law on this, but the rational basis in my mind would be the increased risk of genetic disorders in offspring. To me that works as rational basis, but not as a compelling government interest (I find the idea of prohibiting people with genetic disorders from marrying or breeding to be repellant, for instance). You could make an argument for an exception for infertile siblings or same-sex couples, but that introduces additional types of discrimination, and heightens the level of scrutiny required, I would think. I plead ignorance as to how this sort of predicament is resolved, as some states apparently allow first cousins to marry on condition of infertility. Maybe it just hasn't been tested, given the limited political capital of the Incest Lobby. Of course, sex- and raced-based laws already require higher levels of scrutiny than does familial relationship, at least as I understand it.

Do you think it is a bad example?

Insofar as you mean that the Constitution requires that "marriage" be defined to include any sort of social arrangement that we may dream up*, that's incorrect.

The Constitution doesn't require that "'marriage' be defined to include any sort of social arrangement that we may dream up" or anything of the sort; the question is either whether a) the Constitution requires that the definition of marriage be extended to same-sex couples via the Equal Protection Clause (or something similar) or b) the Constitution permits a more discriminatory class of marriage.

I just can't believe that there is any data that would support the contention that gays, just because of sexual orientation, can't be good parents.

There is data that supports they are:

In summary, there is no evidence to suggest that lesbians and gay men are unfit to be parents or that psychosocial development among children of gay men or lesbians is compromised in any respect relative to that among offspring of heterosexual parents. Not a single study has found children of gay or lesbian parents to be disadvantaged in any significant respect relative to children of heterosexual parents. Indeed, the evidence to date suggests that home environments provided by gay and lesbian parents are as likely as those provided by heterosexual parents to support and enable children's psychosocial growth.

CharleyCarp--von has some sort of V-chip in his brain that does not allow him to remember liberal constitutional arguments. If you get him to budge an inch on this thread, he will forget it the next time. Resistance is futile. ;)

And where's Fitz, anyway? Seems as if it was Fitz making the most...not strong; what's that word? Oh, impassioned. Yes, Fitz was making a rather impassioned, albeit poorly supported argument against the allowability of gay parenthood, when he drops right off the face of the blog.

CharlieCarp:

And the reason we interpret the Constitution differently from a contract, or a patent, was expressed by Chief Justice Marshall in M'Culloch v. Maryland:

I absolutely agree that we interpret a Constitution "differently" from a contract, patent, or (for that matter) a statute. My point was that, in virtually all cases, if we have a question as to when we interpret a legal document, it is almost always resolved of interpreting the document on the date that it was drafted. It should not be controversial in the least to apply this same, well-established, and, frankly, eminently logical standard to the Constitution and its Amendments.

And frankly, if the answer is 'yes, because of 1868,' you have to say that Loving was wrongly decided.

Actually, no I don't. "The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States." Loving v. Virginia, 388 U.S. 1, 10 (1967). This purpose is plain on the face of the Fourteenth Amendment. I don't care for whatever "secret intent" may be present in the framers of the 14th that are not expressed in its plain language, and therefore find Virginia's argument that the 14th was limited only this or that category of racial discrimination wholly unpersuasive. (I'll not limit the reach of a broad command based on the presumed intent of a handful of the amendment's drafters.)

Now, the natural response is that I'm trying to have it both ways, in that the Loving court's expression of the 14th Amendment's "purpose" (stated above) also is not found in the 14th Amendment. And here we enter into a question of "what is a marriage," and whether gay men and women are prohibited from entering into a marriage.

I think that -- if we're seeing the world as it is and not as we'd wish it to be -- that it's fair to say that the definition of marriage has never embraced same sex unions. (Such is not the case for interracial marriage -- indeed, the negative inference of the Virginia statute at issue in Loving alone shows that marriage inherently has no racial requirement; else, why did Virginia see a need to prohibit interracial marriage?) Accordingly, there never was a prohibition against "gay marriage"; there didn't need to be, for it didn't exist. Gay people were always free to marry just as anyone else -- they just had to choose partners of the opposite sex (and many did).

Now, do I bemoan the fact that folks in 1868 (gay and straight) didn't have a concept of gay marriage? Yeah, I do. It doubtlessly led to tremendous suffering. But just because I think that a practice is wrong doesn't mean that the Constitution prohibits it. Because the next guy or gal down the line may have an entirely different sense of right and wrong, and I don't want to be subject to his or her whims.

Sorry for any typos in the above; I've got a couple filings today.

Sorry to the rest for my failure to specifically respond to your arguments. Take it to mean only that I have limited time today, not that you don't make good points. (Or give good snark, in the case of Katherine.)

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