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April 27, 2009

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They used commonly understood words with commonly understood meanings. No one had to explicitly define marriage as between a man and a woman any more than you have to define the word 'is'. That is part of the pretense.

Oh, OK then. You mean words like "cruel" and "unusual" and "no law" and things like that, right?

"Brett, I'm curious: why do you think it is that the overwhelming majority of prostitutes are women, not men?... Why do you... Why do you... Why do you...

Because women and men don't only differ in their plumbing. We differ in our brains, too.

Do you think male and female lions act differently due to socially constructed role models? We're animals, too, you know. Our choices are more constrained by neurobiology than people really like to think. In a perfectly unbiased environment, we would NOT be doing the same things. Ergo, the fact that we're doing different things can not reasonably be considered proof that we're being coerced. Got to actually show the coercion.

The overwhelming majority of prostitutes are women because women have a lot less interest in buying sex without commitment than men, and a lot less innate hostility to the idea of having sex with somebody they're not attracted to in return for money. In the same dire straights, men will resort to doing something equally desperate, but different.

Why didn't you ask, "Why are most of the people rotting in prison men? Why are most of the people paying child support, and denied custody, men?" Didn't confirm your thesis, I'm guessing.

No, while there's oppression in the US, oppression on the basis of sex is at most a second order phenomenon, and not all of it cuts against women, as you can see in custody and support hearings.

To put it another way, Sebastian: To say that there was no need for the various state constitutions to define "marriage" because everyone know what "marriage" means is question-begging at its finest. Once it become clear that at least a few of these constitutions had enough daylight that there was no legal reason to exclude gays and lesbians from marrying, some people sure found a need to define "marriage" in the constitution right quick, didn't they?

I mean, everyone know what "religion" means, and yet look at where we are after a couple of centuries of establishment clause jurisprudence.

Everyone knows what the American flag is, but let one of those atrocious flag desecration amendments ever pass, and I bet that we're going to have a lot of people asking, "Just what do they mean by 'American flag?' Is this a flag? Or this?"

Everyone knows what "freedom of speech" means, and yet etc. etc.

So, no, if someone is going to repeatedly complain about "judges changing the definition of marriage," and I ask, "How was marriage defined in their jurisdictions prior to their decisions?" you're going to need to do a lot better than "Everyone knows what 'marriage' means." That argument doesn't even get you to the table, let alone to the next hand.

ETA: Can someone else argue about the naturalist fallacy with Brett? I'm tired.

I don't think you quite understand my point, if you think I'm engaged in the naturalistic fallacy. I'm not arguing that what people are doing is good, because it's natural.

I'm arguing that because men and women are biologically different, you can't use the simple fact that they don't end up doing the exact same things in the exact same proportions as proof of coercion, of oppression. Even if we were completely free, we wouldn't be doing the same things, because we aren't the same to begin with.

Brett: We differ in our brains, too.

You're certainly different in your brain, Brett, but I don't think it's because of your gender.

Of course it was routinely asserted that the "reason" black people were discriminated against in North America and Europe and indeed anywhere the white colonists from Norther Europe had gone, was because their race made them "different in their brains".

Do you think male and female lions act differently due to socially constructed role models?

Do you think a pride of lions is not a social construction?

I just find it awfully convenient, Brett, that everything that benefits you appears to be the product of hard determinism; while everything that inconveniences you appears to be the product of malicious, even sociopathic, motivations on the part of others.

Do you think a pride of lions is not a social construction?

If "social construction" is going to carry the load it's been assigned, rather than representing a tautology applicable to any situation where two or more entities interact, no, I don't think a pride of lions is a social construction.

"Social construction" carries the implication that it could just as well be otherwise. Not the implication of a situation which is the natural consequence of the inherent nature of the entities interacting, and which wouldn't be otherwise without extensive on-going intervention. (IOW, just because you could put some lions through massive operant conditioning, and create a pride centered on one lioness and a group of males, doesn't mean that the normal arrangement is arbitrary.)

We are animals, complete with instinctual drives and predelictions which differ between the sexes. Pretending that any disparity in circumstances or behavior between the sexes is evidence of coercion is madness. Such may represent instances of coercion or opression, but the simple disparity doesn't prove it.

Because women and men don't only differ in their plumbing. We differ in our brains, too.

The problem with this, Brett, is that while there is perhaps some small "natural" cognitive dimorphism, the human brain is also incredibly plastic and our preferences and behaviors even more so.

It might be that in some perfectly controlled experiment we could somehow observe the "natural" differences between men and women, but we don't have one. Meanwhile, there are so many powerful factors other than genetic makeup that affect who we are--things like infant nutrition, infant and early childhood socialization, etc.--that the fact is you simply can't assert that "men and woman may be (slightly) different, thus all sexist behavior is natural".

It's like having two pieces of wooden furniture, and someone points out that they're different colors. You say, "Duh, one's made from beech and one from poplar. Case closed."

Except both pieces are painted

I'm not asserting tht men and women are different, and thus all sexist behavior is natural. I'm asserting that, because men and women are different, you can't presume that differences in circumstance or behavior are the result of oppression.

I'm arguing that, if you've got two pieces of furniture which are difference kinds of wood, you can't use a difference in color as proof that they're painted. You've got to prove there's paint there.

, you can't presume that differences in circumstance or behavior are the result of oppression.

Oh, if only there were some sort of historical record of social and legal interaction to which we could refer!

I'm not asserting tht men and women are different, and thus all sexist behavior is natural. I'm asserting that, because men and women are different, you can't presume that differences in circumstance or behavior are the result of oppression.

I'm arguing that, if you've got two pieces of furniture which are difference kinds of wood, you can't use a difference in color as proof that they're painted. You've got to prove there's paint there.

You're missing the point.

We already know they're painted. Everything we know about biology and history tells us that any innate differences are only one small factor among many.

And even where there is some small established difference--such and such a hormone causes such and such a brain structure to look a little different--that 'innate' factor interacts in unpredictable ways with all the hundreds of others.

You simply can't take a behavior at the output end of that process, and say that it's because "men and women are different".

Like you did here:

The overwhelming majority of prostitutes are women because women have a lot less interest in buying sex without commitment than men, and a lot less innate hostility to the idea of having sex with somebody they're not attracted to in return for money.

You are making tendentious assumptions at virtually every stage of the game to get to that statement.

such and such a hormone causes such and such a brain structure to look a little different

I should clarify here that this is even assuming the hormonal/structure difference is innate/genetic. I think people often underestimate the degree to which biological processes like hormone expression are influenced by social interactions.

"To say that there was no need for the various state constitutions to define "marriage" because everyone know what "marriage" means is question-begging at its finest."

I don't see why you are so strenuously agreeing with me: for various definitions of 'no need' 'various' 'because' 'everyone and 'question-begging' you clearly are agreeing with me on every possible particular.

If you don't want to defend your premise that, for judges to be accused, in the context of a legal proceeding, of "changing the definition of marriage," there doesn't need to actually be a legal definition to be changed, that's fine, Sebastian. Just say so. I'll move on to discussing things with people interested in defending their premises.

You don't think that was a defense? I don't think you understand your argument very well then.

We use words to write laws. You can't define all the words and all the definitions and all the definitions of the definitions ad infinitum.

In US usage, the term ‘marriage’ was not ambiguous as to the sex of the parties. So unambiguous in fact that if you want to talk clearly about close relationships between same-sex partners as ‘marriage’ it is necessary even now to refer to them as ‘gay marriages’ or ‘same-sex marriages’. There was not a latent ambiguity in the term as to the sex of the people involved that was suddenly discovered in the 1990s. The term marriage was not left undefined as to the gender of the parties because people generally thought marriages might include same-sex partners. If you want to claim that, and you seem to, you should probably find some small bit of evidence in that direction.

If you are going to hang your hat on “every definition of every word has to have definitions which have to have definitions which have to have definitions” you are arguing for an illusion of precision which in fact always leaves everything open.

As an argument by analogy, I’m fine with “Hey, a lot of the deep meaning of marriage is about two people who love each other coming together and committing to one another. Gay people do that too. We should extend it past its old meaning of a union between a man and a woman to include a man and a man or a woman and a woman.”

That isn’t at all the same as “Marriage wasn’t hyper-technically defined as between a man and a woman (cough, because everyone knew it was obvious) so we are going to legalistically seize on that to avoid discussing the topic and trying to convince anyone.

And again, if you read the torture memos in the light of hyper-technical legal discussions seizing on alleged ambiguities that aren’t really there, you’ll find the exact same thing. The torture memos are all about avoiding the obvious, completely well understood meanings of terms (both common and legal) in order to manufacture illusory ambiguities and then exploit them to get what the authors wanted. Ultimately the difference between rule-of-law and legalistic manipulation comes down to the fact that at some point you have to defer to the law or have the law changed rather than always bend and break the words of the law to your will.

With sufficient effort and a willingness to manufacture fake ambiguity, the words of any legal document can be broken into uselessness. But if you make that a regular feature of your system, people aren’t going to trust it.

Is there a legal defintion of "up"? No? Guess judges are free to rule that up is down, then. That's what you're saying, Phil.

Jack, I don't think you're in any position to be complaining about tendentious assumptions. And the assumption that neurological differences between men and women are minor is fairly dubious.

You don't think that was a defense? I don't think you understand your argument very well then.

OK, I've been back posting for all of a week, and you pull this rhetorical trick out again? I'm done with you forever, Sebastian. Please do not address me or quote me in future, as I shall not respond.

Try not to waste too much time mourning.

Brett: Is there a legal defintion of "up"? No? Guess judges are free to rule that up is down, then. That's what you're saying, Phil.

No, it's not, but you believe whatever helps you sleep at night.

"I'll move on to discussing things with people interested in defending their premises."

Irony thy name is Phil.

Jack, I don't think you're in any position to be complaining about tendentious assumptions.

Oh? How so?

And the assumption that neurological differences between men and women are minor is fairly dubious.

We're the same species, speak the same language, have the same intelligence as near as can be measured, same hopes, etc.

Of course, there are differences, they are just not anywhere near as important or explains as much as you seem to thinkg. The differences such as they are very hard to see underneath all of the tremendously influential social factors (and note that even many biological differences can be socially influenced).

For example, the differences between members of the same sex but from different cultures can easily be much greater than the differences between members of the same culture but of opposite sex. Even within the same culture and gender, differences of personality, brain chemistry, etc., between individuals can swamp any strictly gender-linked variation.

We know that these confounding factors exist, and are hugely important.

When you make a statement like "women are less interested in buying sex" the onus is on you to actually explain why it is you think that in this case this (supposed) preference cuts through all of the hundreds of layers of conscious and unconscious complexity in our brains, all the obvious acculturative factors, all of the obvious instititional factors, down to some kind of primal genetic instinct.

Today here in DC, Ward 8 council member Marion Barry came out in opposition to same-sex marriage at a rally organized by local ministers. He was absent for the 12-0 vote in favor of recognizing same-sex marriages from other jurisdictions, but says he would have voted no.

The bright side is that Congress now will have to decide between siding with the gays and siding with Marion Barry.

Hmm, not seeing confirmation about Barry. May be some sort of hoax.

We need to tell our stories of our experiences of oppression and discrimination as gay people so that people understand why the laws must change. Below is an ordinary story that probably is repeated every day in America.

From The Advocate October 9, 2007
Family Trauma

“You are in an antigay city and state.” Those were the words of the social worker at Miami’s Jackson Memorial Hospital as my partner, Lisa, lay dying just steps away in the trauma center, behind locked doors. He punched his code on the keyboard and walked away, leaving me standing in the waiting room with our children -- Katie, David, and Danielle, ages 9 through 13. None of us could see her.

Less than 30 minutes earlier, we had been on an RFamily Vacations cruise ship set to sail to the Bahamas. For months, each of us had been dreaming of white sandy beaches and blue waters and spending some much needed vacation time together as a family.

Lisa and I met in 1989. We dated, settled down, built our lives together over many years. We supported each other through school and while we established our careers. We adopted our children when they were little. We had the perfect family life.

Lisa and the kids were on the top deck of the ship when she collapsed last February. They were playing basketball as the crew prepared the ship to depart. The kids managed to help her down to our stateroom, where I had been unpacking. As soon as they came through the door, I knew it was something serious. Lisa, who was healthy, could not talk or stand. I asked if she had hit her head, and she sternly replied no in sign language, which we had learned to communicate with the many language-delayed children we had fostered over the years. When medics loaded her into the gurney to transport her to the hospital, she signed, “I love you.” It was the last time we would see her alive.

***

They were legally married in Massachussets, this happened in Florida.

In my own short life, I remember one time my employer looked me in the eye and told me would pay be $9 / hour instead of $12 / hour because I was gay. "I have limited resources, I have to give the priority to families". If I didn't like it, they could do without a faggot around. It is still legal to pay gay people less for the same work in my state.

My experience in America has felt like living in a dictatorship. I am afraid all the time of what will happen next.

I am grateful for articles like this and they give me optimism for the future. I have been planning to leave the US because I don't want to end up like that lady in Florida or something like that. But things might start to get better soon

Up to the minute: the Maine Legislature's Judiciary Committee just voted to send the same-sex marriage bill out to the legislature:

Ought to pass -- 11

Ought not to pass -- 2

Ought to send out to referendum -- 1

Non-voting representative of the Penobscot Nation -- supports the bill.

:)

There's a long way to go and even if the bill passes we're about 99% certain to end up having a people's veto referendum anyhow.

One thing at a time.

In US usage, the term ‘marriage’ was not ambiguous as to the sex of the parties.

So you claim, yet you are unable to prove.

And once again, Sebastian, you keep trying to make light of torture by claiming it's equivalent to marriage. Or possibly, you really think marriage is torture. Either way, it's really, really creepy.

In US usage, the term ‘marriage’ was not ambiguous as to the sex of the parties.

Not that I need to pile on, but I think this is a silly statement.

Not least because of the history of recognition for same-sex relationships. At the time these laws were drafted, I agree that lawmakers probably had in mind marriage between "a man and a woman".

Does this mean they really meant to exclude same-sex marriage? I don't think so. Probably they didn't think of it much at all - certainly not in connection with marriage. Same-sex relationships simply weren't on the social radar.

Homosexuality, after all, was merely a mental illness. At best maybe a harmless quirk, like the funny way rich uncle Carl was always spending time with young men, although nobody talked about it.

That's changed, obviously. Homosexuality is no longer considered a mental illness or an eccentricity. We understood that the love relationship between same-sex couples is for all intents and purposes just as valid as opposite-sex couples.

In other words, it's not the legal definition of marriage that's being changed. It's something more fundamental: the social definition of what sorts of relationships are considered acceptable in the first place. And this change has for the most part already occurred - same-sex marriage is still mildly controversial (though growing less so by the day), but intrusion into the lives and bedrooms of consenting couples--of whatever sex--is now much more universally condemned. The battle over the social definition of a sexual relationship is basically over.

Now, this change is being dismissed, even by Publius, as somehow "political", but I think it's clearly more than that.

Regardless, the courts had almost nothing to do with the change. Decisions such as Iowa's are merely belated recognition of its full implications - that where acceptable relationships go, marriage must follow.

(And if Sebastian can come up with a similarly turbulent history for concepts underlying words like 'no need' 'various' 'because' 'everyone and 'question-begging', he can maybe have a point. I'm not seeing it now though.)

The overwhelming majority of prostitutes are women because women have a lot less interest in buying sex without commitment than men, and a lot less innate hostility to the idea of having sex with somebody they're not attracted to in return for money. In the same dire straights, men will resort to doing something equally desperate, but different.

Do you really think that these differences (to the extent that they exist) are the result of inherent neurological differences between men and women? Given what we know of human culture, it seems far more likely that they're the result of prejudices and attitudes inculcated in both men and women by society.

Jesurgislac, "And once again, Sebastian, you keep trying to make light of torture by claiming it's equivalent to marriage. Or possibly, you really think marriage is torture. Either way, it's really, really creepy."

Nope. I'm not making light of torture at all. In fact it wouldn't help my argument if I were taking torture lightly. I have to take it seriously for my argument to make sense. And I'm not making them equivalent in any way. I'm showing how people are willing to destroy plain meanings and the rule of law to do what they think is right. And I'm suggesting that shredding the rule of law in one case, makes it easier to shred in other cases. Which is ironic, because neither side would want to help the other.

Jack,

Not least because of the history of recognition for same-sex relationships. At the time these laws were drafted, I agree that lawmakers probably had in mind marriage between "a man and a woman".

Does this mean they really meant to exclude same-sex marriage? I don't think so. Probably they didn't think of it much at all - certainly not in connection with marriage. Same-sex relationships simply weren't on the social radar.

I don't see how that helps you. They didn't *mean* to exclude same-sex marriages because marriage didn't have anything to do with same-sex. You don't have to explictly exclude a category that you aren't talking about. If I'm talking about buying a car, I don't have to explicitly state that I'm not buying an airplane. Part of the definition of car excludes most versions of airplanes. Now if I want to change the legal definition of 'car' to mean what we would normally call 'vehicle' so that it includes airplanes and ships, I'm perfectly free to do so. In many contexts it might even make sense (say carbon emissions per weight or something). But that doesn't mean that there was confusion about what 'car' used to mean. It doesn't mean that 'car' was an inherently faulty or ambiguous concept. It means that I chose to change the definition.

There are lots and lots of potential human relationships. There are 'friends' and 'lovers' and 'partners' and 'brothers' and 'sisters' and 'mothers' and 'cousins' and 'employees' and 'husbands' and 'wives' and 'mentors' and all sorts of other things.

'Marriage' is one of those relationships. Historically, in the US, one of the features of 'marriage' was that it was between a man and a woman. As you note, many people have decided that one of the most salient features of marriage is that it is between two people who love each other (in theory, though of course we've all seen other marriages). Many of us have decided that the 'two people loving each other' fact is more salient than that the people be of opposite sex.

That is great! I applaud this new definition. I agree that the 'two people loving each other' concept of marriage is WAY MORE IMPORTANT than the historical definition that those two people were of different sex. But that doesn't mean that the definition of marriage always included that. Or that the definition of marriage was ambiguous and we somehow missed it.

No. We changed it. We want to make the definition fit better.

Great.

But don't lie to people by pretending it was always there. They know it wasn't always there. They aren't idiots. Telling them they are idiots isn't likely to help. And it breaks down the trust in the rule of law. Just be straight forward: "I think we should change the definition of marriage to include gay people because..." Have a political fight over it. But unless you're willing to just wreck the political system over it, don't pretend that it was there all along.

And for God's sake don't play the stupid "it wasn't precisely defined enough" game unless you're willing to have that played right back at you in areas that you cherish.

Be a proud progressive and say "the old definition doesn't fit the modern world, so we think it should be changed".

I don't see how that helps you. They didn't *mean* to exclude same-sex marriages because marriage didn't have anything to do with same-sex. You don't have to explictly exclude a category that you aren't talking about. If I'm talking about buying a car, I don't have to explicitly state that I'm not buying an airplane.

The first part is exactly my point. The part about cars and airplanes doesn't make any sense.

If you want, it's more analogous to a purchase, period. And it'd be absurd to argue that selling or purchasing a computer, say, was illegal because the law governing sales of durable goods was drafted in 1816, and obviously nobody had had computers in mind when they drafted it.

This is the way to look at the 'definition' of marriage. Imagine, for example, that some weird mutation caused 1 in 10 people to spontaneously develop an entirely novel system of sex organs, incompatible with the rest of humanity.

Do we need to draft an entirely new "marriage" statute to cover marriage between the new types of sexes? I would argue no.

Once you recognize that these people are still human beings, and the committed relationships they enter into with each other are essentially the same as everyone else's, with no compelling state reason to discriminate against them, marriage follows.

What was lacking up until very recently for same-sex relationshops was not the last part, marriage, it was the first two parts. The last part is (in a just and rational world) automatic.

Sorry, italics fail. First paragraph is obviously Sebastian.

I'm showing how people are willing to destroy plain meanings and the rule of law to do what they think is right.

Do you really think that the lawyers who wrote the torture memos did so because they thought torture was right? Do you think that they wanted the US military to be able to legally torture prisoners in exactly the same way as George Takei wanted to marry Brad Altman? Do you think that George W. Bush and Dick Cheney thought that torturing prisoners was as desirable a goal in their lives as the freedom to marry was for Del Martin and Phyllis Lyon?

To claim that wanting to be able to marry your life partner involves the same kind of twisted reasoning as was required in arguing that making prisoners suffer intolerable pain was somehow "not torture" is truly disgusting, Sebastian. I can really barely respond to you, since if you claim you haven't changed your admirable views deploring torture, that means you are somehow able to regard civil equality for yourself and other LGBT people as equivalent to torture in moral depravity - and that fills me with mingled horror, pain, pity and disgust so deep I need to walk away from the Internet for the night.

In the US, since 1967, marriage has been clearly and unambiguously defined as a civil right, necessary to the orderly pursuit of happiness. You should not loathe yourself or your sexual orientation so much that you think you are not entitled to share in the orderly pursuit of happiness.

Another related point against the "definition" of marriage is that those lawmakers back in 1650 or 1816 or whenever probably had a lot of things in mind when they thought marriage. Wives as property, for example.

A modern wedding presided over by some hippy with minister credentials printed off the internet, and where the bride is going to be the primary income earner and maybe literally wears pants to the ceremony, would blow their minds.

And yet nobody is arguing (seriously, at least) that any of those things would be valid reasons for the state to deny issuing a marriage license.

Jack, "Do we need to draft an entirely new "marriage" statute to cover marriage between the new types of sexes? I would argue no."

No, all you need to do is put a little thing at the beginning saying "Marriage as below in section X.X shall include unions between any combination of men, women, Xtien, and Eriwwen." Which is pretty much what I think we should do with gay marriage.

A modern wedding presided over by some hippy with minister credentials printed off the internet, and where the bride is going to be the primary income earner and maybe literally wears pants to the ceremony, would blow their minds.

And yet nobody is arguing (seriously, at least) that any of those things would be valid reasons for the state to deny issuing a marriage license.

I'm don't know why you think it would particularly blow their minds at all. Except for the downloading on the internet thing (where you have to explain the internet first) why would they worry? In various US jurisdictions especially in the expansionist West, people could be married by clerks, registrars, military officers, one of the parents, any clergy from any church or pseudo-church, the mayor, the general store owner, or any of a number of various people. And so far as I know, the people who can give a civil marriage is or is not limited by the indivdual states. And if they wanted to say that only the county clerk can civilly marry someone, they have every Constitutional right to do so.


Jesurgislac, "Do you really think that the lawyers who wrote the torture memos did so because they thought torture was right?"

I'm not sure I understand the question because the answer seems so obviously 'yes' to me. I think the lawyers who wrote the torture memos did so because they had deluded themselves into thinking that torture was necessary for the defense of the country. So they made the 'tough' decision to twist the law until it broke so that they could do the right thing.

"To claim that wanting to be able to marry your life partner involves the same kind of twisted reasoning as was required in arguing that making prisoners suffer intolerable pain was somehow "not torture" is truly disgusting, Sebastian."

I'm not claiming that at all. I'm claiming that twisting the law to the breaking point because you want to marry your life partner is feeling justified in intentionally twisting the law in order to do what you think is right. Publius explicitly admits that in his original post. Lots of people have different ideas about what is 'the right thing to do'. Some of them (and I suspect actually that it is LOTS of them--consider if you will the Democratic Party's general unwillingness to tackle the torture issue at the time) think that torture can be a right decision in some circumstances.

If you continually undermine the rule of law for the things you think are right, you can't really appeal to the rule of law with useful force when other people want to do what they think is right.

The law in Western society is a negotiated compromise among various people with fairly divergent views with the purpose of getting them to live together in relative peace. The rule of law is intended to get people to trust in the law and to follow it by letting them know what it is, and by giving it predictable and understandable methods to change. Much of our society is held together by the fact that most of the people will follow what they understand to be the law even if it doesn't perfectly align with their perceived interests or exactly with their understanding of justice.

But I believe that is a relatively fragile trust. Undermine it repeatedly, and people are more willing to ignore the rule of law in favor of seeing things turn out the way they would personally prefer. This is great so long as the only people allowed to do so, are those who agree with you.

Unfortunately, you can't guarantee that.

I'm don't know why you think it would particularly blow their minds at all. Except for the downloading on the internet thing (where you have to explain the internet first) why would they worry? In various US jurisdictions especially in the expansionist West, people could be married by clerks, registrars, military officers, one of the parents, any clergy from any church or pseudo-church, the mayor, the general store owner, or any of a number of various people. And so far as I know, the people who can give a civil marriage is or is not limited by the indivdual states. And if they wanted to say that only the county clerk can civilly marry someone, they have every Constitutional right to do so.

The part about the minister was largely incidental - you're ignoring the part about the pants. And the primary income earner. And probably the couple having "lived in sin" for a decade or two before getting married. And having had a couple of dozen previous sexual relationships - each. And maybe drafting elaborate pre-nups.

Now, I don't mean to say that this was all previously unheard of, or that anybody who lived a century ago or more was a prude. Of course they weren't. But the fact is that "traditional marriage" can be as helpfully analyzed as the transfer of a virginal bride as property as it can as a "union between a man and a woman". Or probably a variety of other ways over the millenia.

And any way you slice it, the customs of dating, sex, and marriage as they are currently practiced have quite a large number of novel features over 100, 200, 300 years ago.

Yet, none of these novel and scandalous new features required any statutory redefinition of "marriage". No legislatures needed to add clauses about how a woman didn't have to be a virgin after all. Or that a dowry was unnecessary. Or that it was ok for a woman to wear pants at the ceremony. Or that marriage didn't need to be about having children. The word "marriage" remained while a whole multitude of customs associated with it changed underneath it.

If any small-minded county clerk ever DID refuse on any of these grounds to recognize a marriage, I'm assuming the justice of the matter was settled relatively swiftly in court, without anyone claiming that the only proper way to resolve these matters was for the legislature to decide on it.

If you continually undermine the rule of law for the things you think are right, you can't really appeal to the rule of law with useful force when other people want to do what they think is right.

Whether the rule of law is being undermined here is precisely the question. (That you are thus begging...)

Publius seems to be a little wishy-washy on the point, but I for one think the judiciary is exactly the appropriate place for deciding this sort of question, After all, the whole point is upholding the rule of law - and holding out equal protection for a class that has only belatedly been recognized.

I would almost go so far as to say that court decisions o this type are better than the legislative process, as I think the former helpfully affirms that, yes, this is what our founding documents said about fairness all along. (But I'll settle for legislative victories when they're quicker.)

Yet, none of these novel and scandalous new features required any statutory redefinition of "marriage". No legislatures needed to add clauses about how a woman didn't have to be a virgin after all. Or that a dowry was unnecessary. Or that it was ok for a woman to wear pants at the ceremony. Or that marriage didn't need to be about having children. The word "marriage" remained while a whole multitude of customs associated with it changed underneath it.

I should add that one of the reasons they didn't need to redefine anything to accommodate those things is because there isn't any good reason for the state to be involved in any of it. Insofar as the state has any interest in sanctioning marriage at all (I think it's kind of dubious, myself), that interest simply doesn't offer any compelling reason to discriminate with the privilege between same-sex and opposite-sex couples.

The Iowa case affirmed exactly this point, in some detail.

"Yet, none of these novel and scandalous new features required any statutory redefinition of "marriage". No legislatures needed to add clauses about how a woman didn't have to be a virgin after all. Or that a dowry was unnecessary. Or that it was ok for a woman to wear pants at the ceremony. Or that marriage didn't need to be about having children. The word "marriage" remained while a whole multitude of customs associated with it changed underneath it."

Most of these changes happened before US common law came into being. And some of them most certainly did have statutory changes associated with them. (See the property rule changes regarding marriages in various states, and perhaps you might want to note that they are STILL different in different states).


"Yet, none of these novel and scandalous new features required any statutory redefinition of "marriage". No legislatures needed to add clauses about how a woman didn't have to be a virgin after all. Or that a dowry was unnecessary. Or that it was ok for a woman to wear pants at the ceremony. Or that marriage didn't need to be about having children. The word "marriage" remained while a whole multitude of customs associated with it changed underneath it."

Most of these changes happened before US common law came into being. And some of them most certainly did have statutory changes associated with them. (See the property rule changes regarding marriages in various states, and perhaps you might want to note that they are STILL different in different states).

The virgin thing had changed for the most part well before 1776. Rules on how you had to have disposed of previous marriages before you could have a new one are most certainly artifacts of explicit statute in states. Dowries haven’t been ‘necessary’ at any time in US history so far as I’m aware. Pants at the ceremony certainly would have been possible in the 1600s.

I actually think it would be tough to find non-statutory changes of any noticeable magnitude, and nothing even remotely approaching the man-woman question. For my contrary list of statutory things: the minimum age, the method of divorce, the need for blood tests, the amount of blood relatedness allowed, whether or not there is common law ‘live-together’ marriage, property allocation and disposition rules on death or divorce, and who can confirm the marriage from the point of view of the state are all changed by the statutes.

Also, despite what you say, the fact that the woman might be the major breadwinner/property owner is certainly contemplated at least as far back as the expansion to the West. Basically you seem forced to resort to trappings around the ceremony, and largely not even those.

“Of course they weren't. But the fact is that "traditional marriage" can be as helpfully analyzed as the transfer of a virginal bride as property as it can as a "union between a man and a woman".”

We’re back to car vs. plane. You are identifying the fact that cars come in various colors while I’m pointing out that they don’t fly. Even as far back as transfers of virginal brides as property, you’d be hard pressed to find the brides regularly be males married to males. The US drew from lots of traditions. But I’m unaware of the one with regular male to male marriages.

No, Sebastian, you're pointing out that cars don't fly and he's pointing out cars don't travel through time.

The difference between a property transaction between two men over one woman--or repeated transactions of this nature that create a polygynous household--and an egalitarian partnership of two people is a very big difference. The structure and power balance is totally different.

The difference between an equal partnership an an equal partnership, with the only *actual* difference being the gender of one of the partners, is a very small difference. The structure of the partnership is exactly the same.

Brown v. Board of Education is not precedent for anything that doesn't fall within the 14th Amendment's injunction against denying equal treatment under the law based on race, creed, color or country of origin

Maybe your copy of the Constitution specifically mentions those protected categories- but the standard issue copy does not. It certainly makes your argument easier if you're allowed to edit the Constitution and make it appear as if this particular difference isn't on the protected list.

Negative injunction laws are inherently discriminatory. Brothers and sisters can't marry and people who want to get high can't buy dope legally.

Only by using a definition of “discrimination” that renders the underlying argument meaningless. Laws that 'discriminate' against people who want to act in a certain way (eg get drunk in public, get high) are not qualitatively the same as laws that discriminate between categories of citizens based on who they are and allow actions by some (eg marrying who they want to marry) prohibited to others. Even if you can successfully use the word “discriminate” in both sentences.

So, when legal conservatives finally are able to overrule Roe, you don't mind if we just go ahead and outlaw abortion outright, as opposed to sending the issue back to the States?
but
Now, do I and many other social conservatives want to amend the Constitution to outlaw all abortions. You bet we do.
and
My point to Publius btw was that under his theory conservatives could just bypass the amendment process after Roe is jettisoned, and argue that the Constitution actualy mandates that abortion be outlawed.
Oh, and I can make that argument fwiw.

So we should hold back now because otherwise you'll trample our rights later, but you naturally intend to do that anyway because you think God told you to. Seems like not such a great bargain for us.

They used commonly understood words with commonly understood meanings. No one had to explicitly define marriage as between a man and a woman any more than you have to define the word 'is'. That is part of the pretense.

Likewise, the original Constitution wasn't written with women in mind; yet we feel comfortable generalizing from their terms to include other categories than those originally intended by the Founding Fathers. Rather than amending the Constitution to explain that “person” or “citizen” now includes women.
Similar to the manner in which we understand “freedom of the press” to apply to novel media. It's not a pretence, it's keeping rights, laws etc in contact with the evolution of society. Now, we could amend the Constitution every time we develop novel media, but it's more effective (and safer) to understand the underlying principles and liberties, and recognize their extension into new areas.

while to call women oppressed in the US is an insult to all victims of real oppression

Right- I might have bronchitis, but calling me ill is an insult to the lady down the street with incurable pancreatic cancer. When I hear that sort of bizzaro-world logic, it makes me wonder about the underlying motive- here, clearly to deny me the use of the word “ill”- and if I can't call myself ill, then there's no way I can get medicine or go to a doctor, can I?

...all you need to do is put a little thing at the beginning saying "Marriage as below in section X.X shall include unions between any combination of men, women, Xtien, and Eriwwen." Which is pretty much what I think we should do with gay marriage.

I'll get to your other reply in a minute, but this part I find really strange.

Consider that when miscegenation finally became acceptable, it was not a matter of rewriting statutes to bizarrely and specifically allow that "marriage shall be between individuals of the white, yellow, black and red races or any combination thereof" or some such.

Instead, it was a matter of dropping or overruling anti-miscegenation clauses in their entirety.

What remained, in Virginia at least, was presumably the code more or less as it was before passage of the "Racial Integrity Act" in 1924: modulo unrelated revisions, everything except the stricken section says exactly the same thing as it did before. The only difference is entirely outside the text: now it's commonly understood that "persons" includes people of different races.

Now, the structures of various state codes differ obviously, but I'm assuming most states are similar -- marriage is simply not (any longer) specifically defined around race one way or the other. Race simply isn't part of the question, because we don't recognize any legitimate state interest in it.

And the same would happen in, e.g., Virginia with same sex marriage. If Virginia's laws invalidating same sex marriage were to be struck down or repealed, what's left would not be a code that bizarrely specifies in detail the allowed sexes of the parties.

What would be left would be the code as it existed before passage of the anti-same sex marriage and civil-union provisions. It would be simply silent on the matter of sex, and marriage would (again) simply be between "persons", who otherwise meet the age, consent, etc. requirements.

Except it would then be commonly accepted that this included "persons" of the same sex.

Most of these changes happened before US common law came into being. And some of them most certainly did have statutory changes associated with them.

Perhaps. I probably overextended the argument there, and I must confess to ignorance of some of the particulars.

Note however that I'm not, indeed cannot, be talking about cultural underpinnings that were already specifically codified, or to codification of additional restrictions. Thus things like "minimum age, the method of divorce, the need for blood tests, the amount of blood relatedness," etc. are not relevant.

I'm referring only to the unspoken assumptions made by all parties, the ones that were never codified, and thus able to change later without falling afoul of the letter of the law. I think it's unarguable that, in general, lawmakers a century or two ago had a somewhat different outlook on things. What you're left arguing about is the "magnitude" of those assumptions.

And that is, again, begging the question. What we're asking is fundamentally whether, from the perspective of the state, the sex of spouses really is any more relevant these days than what you call ceremonial trappings.

LadyVetinari maybe got at it better: marriage has been gradually redefined from an inherently sexist and unequal power and property relationship, into something that is more like an (ostensibly) equal partnership.

In the process it's gone from something that even gays and lesbians themselves may not have considered particularly interesting (when they were not too busy hiding, or being shunned and locked away, that is), to something that is every bit as useful to gay and lesbian couples as to heterosexual couples.

That transformation also means same-sex couples are every bit as 'useful' to the state as opposite sex ones.

The change has accumulated either culturally, or in legal changes unrelated to the question of the sex of spouses. And a similar change has occurred with the recognition of same-sex attraction and relationships.

And those changes are now simple facts. Not only do I think it's appropriate for those facts to be recognized by a court, I think a fair court would be hard-pressed NOT to put two and two together and extend rights to same-sex couples.

I want to add that I fundamentally have some impatience with this sort of legalistic quibbling. I find it to be short-sighted and...miserly.

I think the spirit of the Constitution, and the concept of human rights is pretty intuitive, and I find it odd that people don't see how these rights don't extend automatically to new situations.

I think that if we were to establish meaningful communication and relations with dolphins, or extraterrestrials, or artificially intelligent robots, and determined that they had the ability to distinguish right from wrong, and to meaningfully consent to something, etc., then they would be for all intents and purposes "human", and I would find endless debates about whether they could marry other humans or not fairly tiresome.

I would like to live in a world where, for example, if science somehow granted the male gender the ability to bear children, there would be little if any debate about whether or not protections like maternity leave extended to them. I would not find arguments that lawmakers had not originally envisioned men getting pregnant to be particularly compelling.

I still can't respond to Sebastian's jitterings about how his freedom to marry is just like torture, but I can offer a link to the man who is apparently the go-to guy for Sebastian to know what he should think: "Why should the government be forbidden from making a moral judgment about gay marriage or abortion but compelled to make a moral judgment about the treatment of terrorists plotting to murder Americans citizens?" Reading Michael Goldfarb (something I try not to do, frankly) is enough to make me feel that all lesbian and gay people currently supporting the Republican party ought to quit for their own mental health.

"I think the spirit of the Constitution, and the concept of human rights is pretty intuitive, and I find it odd that people don't see how these rights don't extend automatically to new situations."

How about embracing the spirit of Article V sometime, and proposing an amendment the next time you want a change?

Brett: How about embracing the spirit of Article V sometime, and proposing an amendment the next time you want a change?

Why not embrace the spirits of Plato, Aristotle, Madison, Tocqueville, and John Stuart Mill, and reject the tyranny of the majority that allows a minority to be treated with any injustice the majority pleases?

It seems odd, Brett, that someone who claimed to value freedom over democracy is now arguing that democracy must be valued over equality, justice, and, well... freedom.

Sorry for the confusion about Marion Barry's reversal on same-sex marriage. My initial report was correct. Here's the video of his performance yesterday.

How about embracing the spirit of Article V sometime, and proposing an amendment the next time you want a change?

Because I think it's already covered, and there is no change.

Kind of like how, incredibly, we didn't need new amendments to extend First Amendment protections to television, or Scientology.

"Because I think it's already covered, and there is no change."

Yup, that's your story, and you're sticking to it, no matter how many changes get made.

Maybe that's just the way his brain is wired genetically.

Yup, that's your story, and you're sticking to it, no matter how many changes get made.

Huh? What are you talking about?

"Likewise, the original Constitution wasn't written with women in mind; yet we feel comfortable generalizing from their terms to include other categories than those originally intended by the Founding Fathers. Rather than amending the Constitution to explain that “person” or “citizen” now includes women."

What precisely do you have in mind? Women were always citizens and persons in the Constitution. Are you arguing that there was some mythical time where they were not protected by jury trial right for example? That women could be unreasonably searched without a warrant? That a woman used to be able to be forced to incriminate herself because she wasn’t a person under the 5th amendment?

And as for the vote, there was an amendment, right? In fact the text of the Nineteenth Amendment directly contradicts your interpretation: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
Congress shall have power to enforce this article by appropriate legislation."

The vote for women is a classic case where we actually used the amendment process rather than pretending that it was there all along.

Yup, that's your story, and you're sticking to it, no matter how many changes get made.

Kind of like how your story is that the Constitution clearly forbade anti-miscegenation laws for about a century before everyone realized it. That is, however many changes are made, *today's* version of what you'd like it to mean is what it has always meant, eternally.
Both sides allow for change; only one side has the courage to admit it.

25 years from now, Ill be arguing with Brett's kids- they will explain how the Constitution obvious protects gay rights and always has, but clearly "person" was not meant to encompass genetically-modified dolphins with human-level intelligence. 50 years from now, Ill be arguing with Brett's grandkids about how the Constitution obviously protects the rights of all biological sentients and always has, but clearly "person" was not meant to encompass self-aware computers.

Heck, blacks were always people under the Constitution, and even the 3/5ths clause describes slaves as "other persons". And the Dred Scott ruling that blacks couldn't be citizens had no constitutional basis at all, as well as being radically unhistorical. (As the dissent in the case made abundently clear.)

The Constitution was color-blind, the institution of slavery was not, and when the two finally came to blows, it was the Constitution that lost. But that doesn't change the fact that the Constitution never set out a racial test for citizenship, let alone personhood.

"25 years from now, Ill be arguing with Brett's kids- they will explain how the Constitution obvious protects gay rights and always has, but clearly "person" was not meant to encompass genetically-modified dolphins with human-level intelligence."

I certainly hope I'll have taught them better than that, I'm a firm believer in the rights of anything that can pass a Turing test.

What precisely do you have in mind? Women were always citizens and persons in the Constitution. Are you arguing that there was some mythical time where they were not protected by jury trial right for example? That women could be unreasonably searched without a warrant? That a woman used to be able to be forced to incriminate herself because she wasn’t a person under the 5th amendment?

Likewise, the 14th Amendment states "No state shall ... deny to any person within its jurisdiction the equal protection of the laws."

So, is it your contention that gays and lesbians aren't people?

As for women, I highly doubt that the founders envisioned a woman as a senator, for example. Yet Article 1, Sec 3 only mentions "persons" and specifies requirements for age, citizenship and residency.

Is it your contention that Rebecca Felton or Hattie Caraway were illegal because there was no amendment specifically allowing senators to be female?

The Constitution was color-blind, the institution of slavery was not, and when the two finally came to blows, it was the Constitution that lost. But that doesn't change the fact that the Constitution never set out a racial test for citizenship, let alone personhood.

Yet it does set out a test for sexual orientation?

I certainly hope I'll have taught them better than that, I'm a firm believer in the rights of anything that can pass a Turing test.

Gays and lesbians can't pass Turing tests?

I sure that isn't your view - but what is your reasoning exactly?

And as for the vote, there was an amendment, right? In fact the text of the Nineteenth Amendment directly contradicts your interpretation: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
Congress shall have power to enforce this article by appropriate legislation."

Not on point- if we passed an amendment today allowing gay marriage, that wouldn't retroactively mean that "marriage" always included gay marriage in older passages in the Constitution.

The vote for women is a classic case where we actually used the amendment process rather than pretending that it was there all along.

I don't recall anyone arguing that a gay marriage amendment would be bad or wrong. If there were an amendment specifically prohibiting the executive from setting aside laws in wartime, that would not mean that it was obviously permitted before that amendment was added.

"Likewise, the 14th Amendment states "No state shall ... deny to any person within its jurisdiction the equal protection of the laws."

So, is it your contention that gays and lesbians aren't people?"

Nope. And?

I certainly hope I'll have taught them better than that, I'm a firm believer in the rights of anything that can pass a Turing test.

As an aside, I hope you're actually somewhat more expansive than this. After all, a Turing test is essentially measuring something's ability to mimic a human. But I think that's probably an excessively restrictive standard for personhood.

Possibly it's a moot point, but I think one could imagine that hyper-intelligent dolphins, or extraterrestrials, or certain classes of artificial intelligence might have thought processes that were NOT recognizably human, but I don't see why you'd deny rights to them on that basis.

You have to boil down personhood a little further, I think maybe all the way down to very basic things like responsibility and agency.

What you're missing here, (Though that might not be the right term for somebody who fails to hit a target they're trying to miss.) Jack, is the rather crucial distinction between who has rights, and what those rights are.

Gays and lesbians have all the rights straights do; We straights can't marry somebody of the same gender, either.

"Not on point- if we passed an amendment today allowing gay marriage, that wouldn't retroactively mean that "marriage" always included gay marriage in older passages in the Constitution."

Ok maybe I don't understand what would be on point. You raised women in the Constitution. You made the assertion that they didn't count as persons or citizens at some point in the Constitution, and that at some other point they became citizens and persons in the Constitution without an amendment.

I pointed out that they had always been persons and citizens, and that so far as their other legal status (voting) we had an amendment on the issue to grant them the right to vote.

I'm not sure what point I'm not on. Women were persons and citizens at all times under the Constitution, so using them as an example of how the Constitution evolved without amendment seems wrong.

Gays and lesbians have all the rights straights do; We straights can't marry somebody of the same gender, either.

Ah. I saw that earlier, and assumed somebody else had taken care of it.

First of all, I imagine you could get around lots of equal protection issues if you just rephrase things to get around the thorny point. For example, what's wrong with a law that says everyone can only marry a person of the same race? The same for everyone, right?

A deliberately obtuse reading of "equal" doesn't actually go very far as an argument. The law isn't (entirely) stupid.

In this case the ability to marry someone of the opposite sex very plainly DOESN'T confer the same rights and benefits to homosexual individuals, and the court actually is capable of recognizing that fact.

Take a look at the Iowa Supreme Court decision around page 30 for a more in depth discussion.

Gays and lesbians have all the rights straights do; We straights can't marry somebody of the same gender, either.

Prior to Loving, blacks had all the rights whites did; whites couldn't marry outside their race, and neither could blacks.

That make sense to you?

"First of all, I imagine you could get around lots of equal protection issues if you just rephrase things to get around the thorny point. For example, what's wrong with a law that says everyone can only marry a person of the same race? The same for everyone, right?"

The flip side is also true. Nearly all laws are based on distinctions between groups. Nearly any law can be struck down with a sufficiently strong attention to 'equal' in the equal protection clause.

"A deliberately obtuse reading of "equal" doesn't actually go very far as an argument. The law isn't (entirely) stupid."

Heh. Considering the argument we just had an extend discussion over deliberately obtuse readings of 'marriage' this is supremely ironic.

What precisely do you have in mind? Women were always citizens and persons in the Constitution. Are you arguing that there was some mythical time where they were not protected by jury trial right for example? That women could be unreasonably searched without a warrant?

I am arguing precisely that. Post-Revolution, men were still considered heads of household under common law, and had wide discretion in controlling their dependants (including the use of violence). Consider the Married Women's Property Act of *1848* in NY State:
Before married women's property acts were passed, upon marriage a woman lost any right to control property that was hers prior to the marriage, nor did she have rights to acquire any property during marriage. A married woman could not make contracts, keep or control her own wages or any rents, transfer property, sell property or bring any lawsuit.
I would say that is inconsistent with nor shall any person...be deprived of life, liberty, or property, without due process of law

Another specific example: in most cases, women did not serve on juries, even after the 19th amendment was passed. Yet we recognize today that this violates a fundamental right, both for the prospective juror (whose views become excluded from the judicial system) and the defendant or plaintiff/victim (when gender may predispose a juror to be sympathetic to one side or the other).

Nope. And?

If not, I'm just not sure I understand what your overall reasoning is.

The flip side is also true. Nearly all laws are based on distinctions between groups. Nearly any law can be struck down with a sufficiently strong attention to 'equal' in the equal protection clause.

Which is why there's a lot of jurisprudence about "similarly situated" and so forth, and why we actually have intelligent human judges deciding this stuff, not adding machines.

But I'm hard pressed to imagine by what argument you can convincingly claim homosexual and heterosexual couples are not similarly situated with regard to marriage, for example.

Yes, I think it would be fair to say that the Turing test is underinclusive of beings which should be accorded rights, and any non-human intelligence that could pass it would probably be more clever than a human. But extensions beyond it would be a rather complex matter to determine. (And in some cases, we'd be worrying about what they would determine regarding us.) So you may take it that I'm using "Turing test" as shorthand.

I expect establishing this is going to be THE major civil rights battle of the latter 21st century, as AIs without rights would be a very marketable commodity.

Heh. Considering the argument we just had an extend discussion over deliberately obtuse readings of 'marriage' this is supremely ironic.

In exactly what way was I reading 'marriage' obtusely? How is it obtuse to recognize that the institution has evolved and that the word likely had different connotations for earlier lawmakers?

"I am arguing precisely that. Post-Revolution, men were still considered heads of household under common law, and had wide discretion in controlling their dependants (including the use of violence). Consider the Married Women's Property Act of *1848* in NY State:
Before married women's property acts were passed, upon marriage a woman lost any right to control property that was hers prior to the marriage, nor did she have rights to acquire any property during marriage. A married woman could not make contracts, keep or control her own wages or any rents, transfer property, sell property or bring any lawsuit.
I would say that is inconsistent with nor shall any person...be deprived of life, liberty, or property, without due process of law"

Which were all state property laws. Which as you note were corrected by changes to... the state property laws. As for the last sentence, I had no idea you were a substantive due process kind of guy. I thought that was mostly considered a conservative thing.

Actually this is all much more relevant than I initially realized. You are suddenly talking about marriage statutes and marital property. But without the implicit assumption of a man and a woman in marriage, who would get to be "head of the household" under those laws?

It sounds to me like there may have been an understanding that marriage was between men and women.

Again, I'm happy to change that understanding. I'm just don't think it is legally legitimate to pretend that it isn't a change.

"How is it obtuse to recognize that the institution has evolved and that the word likely had different connotations for earlier lawmakers?"

I was speaking to those who claimed that marriage wasn't sufficiently precise as to have EVER excluded same-sex marriage. See top of thread.

You claim the institution has evolved, yet most of the times when put to the legislature it turns out that it hasn't. So you have to rely on friendly judges and tortured readings of the history of marriage statutes. Which, I have suggested above, is problematic unless you are sure that the judicial system can only be held by progressives who agree with you all the time. If not, you have degraded the mechanisms for the rule of law to make it easier to dismantle the protections you like.

I was speaking to those who claimed that marriage wasn't sufficiently precise as to have EVER excluded same-sex marriage. See top of thread.

I think the problem here is that the law is an organic creation that can't be separated from it's social context.

Same-sex marriage in 1801 wasn't illegal, because there wasn't a law against it. What it was was inconceivable. That's different.

And the fact is that when same-sex marriage IS legal, it'll be primarily a matter of striking or repealing various laws specifically and recently passed to outlaw it. Returning those statutes to a form remarkably like they were in 1801 (modulo unrelated changes that occurred in the interval, obviously).

I'm aware that the existence two identical laws with two plainly different meanings causes all kinds of existential semantic concern for you, but I don't actually think it's that big a deal, and I think it's unlikely to result in a slippery slope where judges start ruling that 'ice cream' means 'elephants'.

You claim the institution has evolved, yet most of the times when put to the legislature it turns out that it hasn't.

I'm actually claiming that TWO things have evolved:

1. Our understanding of homosexuality- It is no longer scientifically considered a mental illness or a perversion; homosexual relationships are widely tolerated, if not accepted; intrusions of the state into the bedroom are even more widely condemned, and are either repealed, struck down, or unenforced; we have evidence that children raised in homes with same-sex parents turn out just as well as anyone else, etc., etc.

2. The institution of marriage, which now means something approaching an equal partnership, for purposes of financial and emotional comfort. (Many of those changes ARE enshrined in the law.)

You put the two together, and out pops same-sex marriage.

And I'm not claiming this evolution is universal. Far from it. But the opposition, while vocal and still somewhat numerous, is not credible. The objections are spurious or, at best, thinly veiled religious pleas.

So sure, same-sex marriage opponents can vote, and even command slim majorities. But they do NOT have any substantive arguments to make that a fair judge would be able to credit.

And this is, as far as I'm concerned, the whole reason we have courts and constitutional government in the first place. If we're not allowed to protect civil rights against backward majorities, what's the point?

"And this is, as far as I'm concerned, the whole reason we have courts and constitutional government in the first place. If we're not allowed to protect civil rights against backward majorities, what's the point?"

You can. But not for everything that the majority might want to do. You can only protect against things in the Constitution.

"I'm aware that the existence two identical laws with two plainly different meanings causes all kinds of existential semantic concern for you, but I don't actually think it's that big a deal, and I think it's unlikely to result in a slippery slope where judges start ruling that 'ice cream' means 'elephants'."

Or marriage I suppose. Or that torture isn't?

Or, in short, this evolution goes in stages. And there's obviously a stage where it defies logic to continue to credit the old arguments about why the change is evil, but where lots of people still have a big squick factor that prevents them from recognizing it.

That's the stage where you need the courts to step in.

You can. But not for everything that the majority might want to do. You can only protect against things in the Constitution.

And equal protection is in the Constitution. So...?

And you haven't responded to my point about equal protection yet...

Which were all state property laws. Which as you note were corrected by changes to... the state property laws.

The jury trial point is not a property law issue, and it speaks directly to a civil right recognized in the Bill of Rights. One that treats "peers" as necessarily (white) males, according to the practice of the time.

As for the last sentence, I had no idea you were a substantive due process kind of guy. I thought that was mostly considered a conservative thing.

From wikipedia, if it's a conservative thing maybe some more conservatives should sign on with it:
Originalists, such as Supreme Court Justice Clarence Thomas, who rejects substantive due process doctrine, and Supreme Court Justice Antonin Scalia, who has also questioned the legitimacy of the doctrine, call substantive due process a "judicial usurpation" or an "oxymoron."

Actually this is all much more relevant than I initially realized. You are suddenly talking about marriage statutes and marital property. But without the implicit assumption of a man and a woman in marriage, who would get to be "head of the household" under those laws?

Sure, Im not disputing that, just as the assumption that a jury would be composed of males was implicit- at least, according to the practices of the time. But the understanding of the freedoms encoded in the Constitution evolve- have to evolve- in order to keep up with social change. As I was pointing out, in 1790 a man might get a trial by a jury of his peers (if he were white), but a woman almost certainly would not. We understand now that this is unjust, and that we need to adjust our understanding of the word "peers" beyond that recognized by the Founding Fathers. We don't need to amend the Constitution to do this, we just need to broaden our definitions to meet society as currently constituted.
Alternatively, we can pretend as Brett does that the Founders actually meant this, but no one realized it until many generations had passed.

Sebastian: Or marriage I suppose. Or that torture isn't?

Stop comparing marriage to torture. It trivialises torture - which you've claimed you don't want - and makes you sound like an embarassingly-self-hating gay man, which you may well want, if you seek advancement in the Republican Party. But I suspect for that you'd need a proper closet.

And you haven't responded to my point about equal protection yet...

I probably missed it. Which comment?

Or marriage I suppose. Or that torture isn't?

I don't get the torture connection at all. The conceit seems to be that the rule of law is somehow broken in both cases, maybe in the same way somehow, but I don't see how.

If the rule of law is really being broken in the marriage case, than count me against it. But that seems to be begging the question again. The argument looks good to me, every bit as good as the torture memo arguments look twisted and lame.

“I don't get the torture connection at all. The conceit seems to be that the rule of law is somehow broken in both cases, maybe in the same way somehow, but I don't see how.”

The connection isn’t between the practices. I’m making no parallel whatsoever between the practice of torture and the practice of gay marriage. (Jesurgislac please take note). The connection is in the perversion of the rule of law to get what you think is right. This is explicitly seen in the initial post by publius. He admits that his reading of the law can’t get to judicial imposed gay marriage. He then says that he is ok with doing it anyway.

That legalistic practice, is contrary to the rule of law. It gets pseudo-justified by people who then play hyper-technical games with definitions in order to get their way—see for example Phil’s assertion, echoed by others on the thread, that the lack of a specific call out against gay marriage means that there was somehow an ambiguity about the term ‘marriage’. In this, he shares a justification technique with the authors of the torture memos—he is willing to twist the laws and plain meanings of things until they break and then can be used as he wants.

The torture connection also is interesting when we look at your justification, which seems to be that while the majority hasn’t quite gotten there yet, the old rules don’t apply. Considering that approximately the same number of people approve of gay marriage as approve of torture cite (which is to say just under half), I would query how that fits into your analysis without appealing to your personal judgment that A is right, B is wrong. I would assume that the initial pass might appeal to civil rights as opposed to security, which is a balance that many people are probably willing to strike differently than you would.

And again, the parallel is in the method used to get what you think is right or wise, not to the rightness of the underlying practice. Torture is wrong and bad and we shouldn’t do it. Gay marriage would be great and wonderful, and we should have it. But I’m not willing to undermine the rule of law to get it, especially when it appears that in the next decade or so it can be gotten through proper channels without breaking the rule of law.

Oh and my point on equal protection is that almost all government rules involve doing something for one group that you don't do for another. For various expansive interpretations of equal you can pretty much have an excellent argument for getting rid of any law you don't happen to like.

see for example Phil’s assertion, echoed by others on the thread, that the lack of a specific call out against gay marriage means that there was somehow an ambiguity about the term ‘marriage’. In this, he shares a justification technique with the authors of the torture memos—he is willing to twist the laws and plain meanings of things until they break and then can be used as he wants.

I'm pretty certain I asked you politely to not quote me or address me, Sebastian; but if you can't restrain yourself, at least behave like a big boy and try to refrain from ascribing motivations to me (e.g., he is willing to twist the laws and plain meanings of things until they break and then can be used as he wants) that a) you have no way of knowing, b) rely on mindreading to an almost absurd degree, and c) are an awfully long leap from a question I asked concerning which state's constitutions actually defined marriage in the first place.

Absent that, quit complaining when Jesurgislac does the same to you. And have fun waiting a decade or so to be equal to us straights. We'll be waiting for you on the other side.

I suggest that Sebastian is only claiming to be gay to avoid a charge of homophobia. Because his lack of reasoning on this issue does not flow from living as a gay person in this country. Or else they tortured him in some ex-gay re-education camp until he was so miserable that now he can't stand to see other gay people living happily

As for the last sentence, I had no idea you were a substantive due process kind of guy.

"Substantive due process" is used to prevent the state from passing laws that infringe unacceptably on liberty; these laws have historically ranged from freedom of contract (Lochner) to freedom to engage in consensual sodomy (Lawrence v. Texas). It involves finding (or, some would argue, creating) rights implied in the Constitution.

The Married Women's Property Act doesn't take away "substantive due process." It takes away literal, procedural due process: literally, the woman's property and liberty can be taken away without 'process' of any kind under this law.

So no, women didn't have due process rights.

There are three main problems with Sebastian's "'perversion' of the rule of law is THE SAME, whether marriage or torture" argument.

The first is that allowing expansive definitions of the government's right to infringe individual citizen's liberties is miles apart from allowing expansive definition of those liberties. The political effects are vastly different. The political motivations of the people who want these two different things are vastly different. The political process by which they happen is also vastly different: courts openly deciding that it is not compatible to deny gay marriage with our understanding of the state or federal constitution (which, yes, evolves) is hardly the same as sneaky back-door torture memos. The legal and historical precedents for both are vastly different. So there is no reason to think that allowing creative legal interpretations of one will somehow lead to creative legal interpretations of the other.

The second is that gay marriage doesn't require creative legal interpretations. Certainly no more creative than Brown v. Board of Education, and civilization didn't end after that. No citizen shall be denied equal protection of the laws. That includes marriage laws. It's fairly straightforward. And don't give me that silly 'black people...oops, I mean gays...have the right to marry people of their own race...oops, I mean of the opposite sex...the same as white people...oops, I mean straights' argument. Couples are being denied the right to have their committed partnerships recognized and given the same legal benefits as other couples, on the sole basis that they're of the same gender. It's the state's burden to show that this discrimination is rational. Or even, since this is actually a form of gender discrimination as men don't have the equal right to marry men, to show that this discrimination substantially serves a legitimate state purpose. The government can't do that.

But the real problem with your argument, Sebastian, is that nobody tortures because they think the law allows it. They torture because they like torture. And governments torture because it's what hyper-powerful entities do, and they can always--always--come up with some fake reason to do it. So the idea that legal reasoning about gay marriage would have any effect at all on what governments do about torture is, to say the least, far-fetched.

Oh and my point on equal protection is that almost all government rules involve doing something for one group that you don't do for another.

And? This is no more an argument against constitutionally protected gay marriage than it is against Brown, or Loving.

Like it or not, legal reasoning isn't some sort of math problem that's done without reference to policy or politics. A lot of government rules that technically treat people unequally aren't challenged, or if they are challenged are upheld, because the judges find the government's rationale for those laws to be well-supported by facts and compatible with the values of liberty and equality. Banning gay marriage isn't either of these things.

Sebastian: I’m making no parallel whatsoever between the practice of torture and the practice of gay marriage.

Indeed you are, and as I noted earlier in the thread, I know where you got this from. The social conservative meme of dragging up "torture" and "gay marriage" in the same breath are an attempt to throw the two together as if they were same thing.

You may think that your fellow Republicans will show you more respect if you mouth these kind of attacks on your own civil rights - your own sexual orientation - but is being "respected" as a sensible gay man - the kind who wants full equality only when the nice straight people are willing to let him have it, the kind who won't cause any trouble if you let him into the straight boys' club - really, really worth it?

Well, for you, evidently, it is. But it's a devil's bargain.

as if they were same thing.

...same kind of thing. Equally morally wrong. (Abortion usually gets thrown in there as well.) As if the moral decision "I will not commit torture" had any possible relationship to "I will work to prevent women having access to safe legal abortion" or "I will protest legal equality for same-sex couples". Except, of course, that there seems to be an enormous overlap of sets: the same people who think torture's not so bad when the US does it, are often the same people who think abortion should be illegal, and who think same-sex couples shouldn't be allowed to marry. That's the company you're keeping, Sebastian...

"Or, in short, this evolution goes in stages. And there's obviously a stage where it defies logic to continue to credit the old arguments about why the change is evil, but where lots of people still have a big squick factor that prevents them from recognizing it.

That's the stage where you need the courts to step in."

Ok, I'm going to comment on that, then I'm leaving the thread alone.

The case I'd make is not that this change is evil. It's that this change is a change. And that we've got article V for changes.

This is not the point where the courts step in. It's the point where Congress drafts an amendment.

In the case of Brown, Congress had drafted the amendment nearly 100 years prior, the Court had stepped in, and royally mucked things up. The Court had done exactly what you advocate back in the Slaughterhouse decisions.

They just did it for the other side.

In Brown, they repaired a little of the damage. And did a half-assed job of it, too. That's all.

You want the courts to be "stepping in" all the time? Better anticipate that a lot of the time they'll be stepping in for the other guys.

Now, you want to know what I really think about 'gay' 'marriage'?

I think it's perfectly understandable, admirable even, that homosexuals would want for themselves an institution analogous to marriage.

Problem is, the word's already taken. So make up another, already!

You know what? I'm tired of getting funny looks if I'm building a camp fire, and ask for a fagot. It annoys me that if I mention I'm in a gay mood, people assume I want to make out with another guy. And I understand why the inhabitants of the isle of Lesbos are pissed.

Homosexuals have been going through the language like termites in the lumber yard, leaving a trail of crumbling words, impoverishing the language.

Homosexuals are oppressing Brett because they are reducing the vocabulary he can use. Cry me a river.

Nah, I wouldn't call that oppression, it just annoys me.

You want lifetime commitment? Sharing joys and burdens? Great.

You want to confiscate another word, and leave it hollow? Not so great.

Why would any straight want to see what's been done to every other word homosexuals laid a stake to, done to marriage?

You get to take the word "marriage", and do to it what you've done to other words, and twenty years from now, married straights will have to find some other way to describe their status, in order to avoid people assuming their mates are of the same gender. Homosexuals do no, historically speaking, share words. They take them, hollow them out, and then when they've squeezed out the last of the positive connotations, drop them and seize another.

Don't want that happening to "marriage".

I'm all in favor of gay marriage, without the quotes. People should be carefree and lighthearted at their marriage. But fire up one of those word generators car companies use, and come up with a new word for this new institution you want. Take your victory, if you must, but leave us the freaking word!

What do you mean "us," paleface? I've been married to my wife for nearly 20 years now, and I think your two posts directly above are just about the stupidest thing I've ever seen from you, which is an astonishingly high hurdle to clear.

Why would any straight want to see what's been done to every other word homosexuals laid a stake to, done to marriage?

Because we're not all pathetic bigots?

You may also want to reflect on the facts that, far from homosexuals "going through the language like termites" and "[laying] a stake to" the language:

1. The word "gay" as a synonym for carefree, uninhibited sexuality and lifestyle predates its synonymity with "homoxexual" by some 300 years, and the fact that it fell out of usage in its heterosexual connotations is hardly the fault of gays and lesbians. It's because "gay" came to be also synonymous with "libertine" and "disreputable" and was therefore seen as a bad thing to be by straight people.

2. "Queer" was used as a pejorative by straights against from the early 1900s until, what, the 1950s? Blaming gay people for the fact that you can't use the word in its original, nonsexual connotation anymore is ridiculous.

3. Similarly with "faggot," which, again, was used as a pejorative by straights to denigrate gays from its inception up until probably the last 30 years.

So, yeah, you might want to reflect on those facts, although I've never seen you reflect on facts before, so I'll temper my expectations.

Or, you can continue to blame homosexuals for taking words that were used to belittle and offend them for a century or three and reclaiming them for positive use. I've never, after all, seen you pass up an opportunity to blame the victim.

Next up, Brett will bemoan the fact that he can't use "negro" to refer to things that are black anymore.

I mean, my head is seriously hurting at the idea that Brett thinks that homosexuals conspiratorially decided to call themselves "gay" and then, after a time, decided collectively, "Oh, hell, now everyone's doing it. Let's call ourselves 'faggots' now!"

Followed by Brett, upon seeing the press release from the National Council on Homosexual Collective Names, saying, "Well now what the hell am I supposed to call my firewood? Curse you, homosexuals!"

As with so many things in life, The Simpsons covered this best:

John: Homer, what have you got against gays?

Homer: You know! It's not... usual. If there was a law, it'd be against it!

Marge: Oh Homer, please! You're embarrassing yourself.

Homer: No I'm not, Marge! They're embarrasing me. They're embarrassing America. They turned the Navy into a floating joke. They ruined all our best names like Bruce, and Lance, and Julian. Those were the toughest names we had! Now they're just, uh...

John: Queer?

Homer: Yeah, and that's another thing! I resent you people using that word. That's our word for making fun of you! We need it!! Well I'm taking back our word, and I'm taking back my son!


Yeah, didn't expect you to understand. A master of sarcasm I'm not.

Is it a rather trivial objection? Exactly! I fully expect to find it annoying, in a couple decades, when I have to refer to our marriage as "a committed heterosexual relationship" in order to keep people from assuming I'm shacked up with another guy. I'll hold a little wake for another dead word. Then I'll move on.

The point here is that my objections to homosexuals 'marrying' are pretty minor. It really IS all about how you get it done, in my book.

And I'm tired of people who assume that, if you object to getting something done the wrong way, you must think it's evil. You know what? Some of us care about means as well as ends. Because you legitimate the wrong means, they get used for the wrong ends, too.

You're winning in the legislatures now. Is it too much to ask that you stop trying to steal your victories in the courts?

Sebastian-

Pretty much what LadyVetinari said.

I just don't agree, with you or Publius, that an equal protection ruling for same-sex marriage requires any stretching of logic.

If it's true that there's precedent that makes it a stretch, frankly that precedent could do with some rewriting. Because what use is an equal protection clause if it's unusable for giving equal protection to people who clearly need some equal protection?

I'll be happy to look more closely if someone actually wants to go through, say, the Iowa decision and point out which arguments or citations are particularly iffy. (The Iowa case was about the Iowa constitution, of course, but AFAICT it used pretty generic equal protection reasoning.)

I'll also say that beyond just this case, I reject the idea in general that we can or should defend against bad judges and bad rulings by avoiding the courts on our issues.

If there are judges out there that are going to rule in favor of torture, they're going to find a way - precedent and/or adopting a particular legal philosophy ourselves is a poor weapon against them. And in the meantime, our issues won't be heard.

No, ultimately, the only defense is just try to guard against appointing bad judges.

Yeah, the problem is when you define "bad judges" as "Judges who will impose somebody else's agenda", rather than "judges who impose agendas instead of just judging." Because it makes the courts in to what legislatures are supposed to be, and we've already got legislatures.

Yeah, the problem is when you define "bad judges" as "Judges who will impose somebody else's agenda", rather than "judges who impose agendas instead of just judging."

What makes you think I'm defining it that way?

I think a decision in favor of torture would be bad on a whole lot of levels, many of them having to do with it being against the law, Constitutional and statutory.

I guess you can call that an "agenda" if you like, but it doesn't mean all agendas are created equal.

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