Oral “Arguments” In The Prop 8 Case

-Submitted by David Drumm (Nal), Guest Blogger

500px-Seal_of_the_United_States_Supreme_CourtOn Tuesday, the Supreme Court heard oral arguments in the other same-sex marriage case,  Hollingsworth v. Perrry, a case involving California’s voter approved ban on gay marriage, also known as Prop 8. UCLA professor of constitutional law Adam Winkler reminds us that oral arguments is the time when justices “hostile to a lawyer’s argument often reveal their disagreement through penetrating—sometimes devastating—questions.” Sometimes penetrating, sometimes devastating, and sometimes the court is not pleased.

The players in this display of forensics are the nine Supreme Court justices, Charles J. Cooper defending Prop 8 (Petitioners), Theodore B. Olson on behalf of the Respondents, and Solicitor General of the United States Donald B. Verrilli supporting the Respondents. Transcript is here.

Justice Kagan asks Mr. Cooper: “What harm you see happening and when and how 12 and — what — what harm to the institution of marriage or to opposite-sex couples, how does this cause and effect work?” Mr. Cooper wisely dodges the question by saying that “that we don’t believe that’s the correct legal question before the Court.” But, Justice Salia provided his own answer:

Mr. Cooper, let me — let me give you one — one concrete thing. I don’t know why you don’t mention some concrete things. If you redefine marriage to include same-sex couples, you must — you must permit adoption by same-sex couples, and there’s -­ there’s considerable disagreement among — among sociologists as to what the consequences of raising a child in a — in a single-sex family, whether that is harmful to the child or not.

There is no disagreement from the American Academy of Pediatrics which “supports … full adoption and foster care rights for all parents, regardless of sexual orientation.” Benjamin Siegel, a professor of pediatrics at Boston University School of Medicine and co-author of the report for the AAP, asserts that “the data we have right now are good enough to know what’s good for kids.”

JUSTICE KAGAN: In other words, you’re saying, well, if we allow same-sex couples to marry, it doesn’t serve the State’s interest. But do you go further and say that it harms any State interest?

MR. COOPER: Your Honor, we — we go further in — in the sense that it is reasonable to be very concerned that redefining marriage to — as a genderless institution could well lead over time to harms to that institution and to the interests that society has always — has — has always used that institution to address.

Justice Kennedy jumps in to encourage Cooper to admit that no real harms will be done:

JUSTICE KENNEDY: Well, then are — are you conceding the point that there is no harm or denigration to traditional opposite-sex marriage couples? So you’re conceding that.

But, Cooper is having none of that:

MR. COOPER: No, Your Honor, no. I’m not conceding that.

The Plaintiffs’ expert acknowledged that redefining marriage will have real-world consequences, and that it is impossible for anyone to foresee the future accurately enough to know exactly what those real-world consequences would be. And among those real-world consequences, Your Honor, we would suggest are adverse consequences.

Cooper acknowledges that real-world consequences of same-sex marriage are impossible to predict, just before he predicts that some of those consequences will be adverse.

When Justice Breyer who asks “Now, what happens to your argument about the institution of marriage as a tool towards procreation? Given the fact that, in California, too, couples that aren’t gay but can’t have children get married all the time,” Cooper responds:

The concern is that redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes, and it will refocus, refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples.

Adult emotional needs like … love? There are many purposes of marriage, do we want the state determining the purpose of marriage?

Then Justice Kagan administers the coup de grâce:

JUSTICE KAGAN: Well, suppose a State said, Mr. Cooper, suppose a State said that, Because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55. Would that be constitutional?

MR. COOPER: No, Your Honor, it would not be constitutional.

JUSTICE KAGAN: Because that’s the same State interest, I would think, you know. If you are over the age of 55, you don’t help us serve the Government’s interest in regulating procreation through marriage. So why is that different?

MR. COOPER: Your Honor, even with respect to couples over the age of 55, it is very rare that both couples — both parties to the couple are infertile, and the traditional -­

(Laughter.)

The state’s responsibility is to protect viable sperm. Cooper has forgotten the number one rule of law: If the facts are against you, argue the law.

H/T: Adam Winkler, Scott Eric Kaufman, Scott Aikin, Ezra Klein, Sandhya Somashekhar, Michael LaBossiere.

128 thoughts on “Oral “Arguments” In The Prop 8 Case

  1. The real question in my mind is the one does the state have the right to define marriage as it sees fit? In Loving the SCOTUS said that only one man/one woman marriage was a right and that absent some compelling state interest such as consanguinity or age of consent, it must be open to all adults. It did NOT say that same sex marriage is a right contingent on a compelling state interest to ban such. I rather liked Kagan’s question on the age question since it shows that gays are NOT discriminated against. They have the same right to marriage as older folks and indeed millions of gays have gotten married without restriction to another person of the opposite sex. If there were a requirement that one be hetersosexual and prove it before getting a marriage license, THEN such a law would be unConstitutional since you would have to show some compelling state interest in banning gays from marrying a person of the opposite sex. Just as the Loving decision showed that the state has to have a compelling state interest in banning interracial marriage.

    Redefining the traditional marriage definition is not part of what the court should do. If New York wishes to redefine marriage as encompassing ALL adults and permits same sex marriage, they have that right. It also has to follow then that polygamy will fall under the same rule if the justices rule for the state not banning same sex marriages. There are some states such as Utah which may well decide that polygamy is part of marriage and that the state has to show a compelling interest in banning it. In fact, polygamy has been part of traditonal marriage FAR longer than gay marriage. Also, banning polygamy tramples on the religious freedom of Muslims, some Moromons, and others.

  2. ROFL. Seems even the attorney arguing before the Supreme Court can’t answer the questions that Karen and Timmy can’t answer. Can it be that there are no real, rational arguments in opposition to same sex marriage?

  3. Every question but the appropriate one: Does it violate the equal protection clause in the Constitution or not? That’s it, nothing more.

    We no longer have a Supreme Court. We have nothing but a WhXre Court serving only the interests of the 1%.

    They are all pathetic. They are illegitimate. And they are trivial.

    They have no valid function.

  4. The Loving decision only specified one man/one woman marriage as being a right. Gay marriage had not even been THOUGHT of back then, and the same SCOTUS let stand anti-homosexual law. So it is NOT the state burden to prove that same sex marriage is harmful or that banning it is unConstitutional. As Kagan pointed out if a state law mandated that only fertile couples could marry, such a law would indeed be unConstitutional and it would indeed be unwarranted discrimination if the state law mandated that one prove ones heterosexuality before gettting a marriage license. Then the state would have to prove that there is a compelling state interest in mandating proof of heterosexualtiy before allowing gays to marry a person of the opposite sex. Such a test would make no sense and would indeed be unConstitutional discrimination, just as interracial bans had to prove some societal harm.

    If one wants to allow same sex marriage, the place to do that is the state legislature, not by judicial fiat. One has to remember that such stretching of the law can and will eventually be used against you at some point in the future.

  5. ccrider 27 asks the question/makes the point. It is beyond me why these people cannot understand the concept of equality.

  6. Slavery used to be legal too, ARE.

    Leaving it to the states is a cop out argument. Equal rights and equal protection are Federal issues under the 14th. And by your own logic, the state would have to prove there is a compelling state interest in homosexual orientation in order to ban it. There is simply no compelling legal state interest in the sexual orientation or gender of a married couple. The societal harm in this instance is the oppression of a minority based on no specific harm and unsupportable by any legal Constitutionally based argument under the terms of the 1st and 14th Amendments. Homosexual marriage, so long as the parties are of age of majority and can otherwise grant valid consent harms no one. Depriving people of their rights as a couple and individually that heterosexual couples enjoy under secular civil law in their relationship? Is simply wrong and on its face a violation of the 14th Amendment.

  7. GOOGLE IS WATCHING & CONTROLLING YOUR INTERNET DEVICES

    I know that paranoic alarms are my specialty.

    Do you use Gmail, then you certainly have noticed how they changed designs in recent days and now it forces you to use their new version.
    If you click on Google ads, they can take over your system by inserting a virus in the picture data.

    I suspect that the “Government” lies behind this. We protest NSA and don’t really KNOW what they are doing.
    I quickly reacted to the new GMAIL version and tried to remove it using all the resources in the windows system. Nothing worked.
    I am using the new version of GMAIL It is better than the old, so the problem is not that.

    It has begun interfering with my logging into other systems, I got in here
    today by using the host system here to get in using their login.
    Same problem getting into and commenting editorials in my home town newspapers. I am not saying that Google is controlling them. Just that Google is controlling my laptop.
    Like I said, all this began about 4-5 days ago.

    Apple? Apple is also forced to “cooperate” with the Federales.
    If you are an Apple system user, you are already controlled by Apple,
    So, if their mail system changed, or if Apple required new apps, etc., then how would you know.

  8. Erb. If the states handle it then how do you deal with a married couple from one state moving to a state their marriage is not allowed? That creates more problems than it solves.

    If the court ruled that a black man had any right that a white man must honor would that be judicial fiat also?

  9. Frankly,

    You are touching on the very issue the “state’s decision” argument fails upon: the Full Faith & Credit argument.

  10. Good article Nal. It is comforting to know that the state is protecting my sperm.
    Gene you are spot on about the states right cop out. If we still allowed states to make these kinds of decisions on a state by state basis, we would still have slavery.

  11. Gene H then all of the arguments you present apply with equal force to polygamy too. So your statement and assertion is that the state has no right to define marriage as it sees fit and that the decision to marry whoever should be left to the parties themselves, absent any compelling state interest.

  12. Frankly we already have that situation when the age limits for age of consent and consanguinity are different in many states. We can handle that the way we do now.

    Also if you wish to state that Federal laws should trump state laws on this matter, then you will have to agree that DOMA is quite legal and correct then. There is ample precedent for using Federal law to compel states to establish uniform laws such as the legal drinking age, the lapsed 55 mph speed limit among others. So unless you disagree with those laws, DOMA is quite correct too.

  13. rafflaw, I guess you forgot to read past the Bill of Rights or did not see the movie LINCOLN. We passed an amendment to get rid of slavery, and Lincoln himself knew that his powers as President did NOT allow him to abolish slavery in the loyal states which still had it. I guess that had YOU been around or President at the time, you would have had the President unilaterally abolish slavery, or had the SCOTUS do it. Of course, those courses would have been wildly unConstitutional, but I guess that is of little concern to those who would wish to make law on their own, or have the courts do it for them.

    We did have the SCOTUS effectively overturn the 14th Amendment with Plesy vs Ferguson, so I suppose you might have some precedent for making up new law as the SCOTUS would like it to be.

  14. If marriage is about procreation, then is the marriage void (or voidable) after a tubal ligation or vasectomy? Kind of like being over 55, but younger, I guess.

  15. ARE:

    “Gene H then all of the arguments you present apply with equal force to polygamy too. So your statement and assertion is that the state has no right to define marriage as it sees fit and that the decision to marry whoever should be left to the parties themselves, absent any compelling state interest.”

    You say that like it’s a bad thing. :-)

    Government involvement in marriage is a relatively late historical development. In the United States, there were no state-issued marriage licenses until the mid-19th century; as of the 1920’s, only 38 of the then-48 states required a marriage license. Such licenses were used, among other things (or perhaps primarily, at the outset), to facilitate the prohibition of miscegenation.

    http://en.wikipedia.org/wiki/Marriage_licence

  16. When marriage turns upon the “feelings” of the adults, then marriage cannot be controlled by number . . .

  17. Why now, who cares…. It’s really about consenting adults…. But if the dang fool can’t answer a question on point by the Justice…. What does that say about the fool…l

  18. ARE,

    The ban on polygamy isn’t based on religious preference. It’s based on the fact bigamy has been a crime at English common law – and that is where our common law derives – since the time of James I. That and that while legislating religious belief is forbidden by the 1st, legislation of religious practice is not. You cannot have polygamy without bigamy. See Reynolds v. U.S..

  19. ARE:

    “There is ample precedent for using Federal law to compel states to establish uniform laws such as the legal drinking age, the lapsed 55 mph speed limit among others. So unless you disagree with those laws, DOMA is quite correct too.”

    Actually, no. The mechanism was different. The federal government coerced the states to change their speed limits and drinking ages by threatening to withhold the federal share of highway funding if the states did not do so. The reason for coercion, as opposed to fiat, was that the federal government had (and has) no power to require such changes by fiat. States are still free to reject funding, raise speed limits, and lower the drinking age.

    DOMA is different. Where, prior to the passage of DOMA, federal law with perhaps a few exceptions, looked to state law to determine whether two people were married, because historically, it is the police power of the states that is used to define marriage. (The federal government has no general police power; all federal powers must be derived from the Constitution, either enumerated or implied through the Necessary and Proper Clause.) DOMA repudiated that approach when it appeared that one state (Hawaii) might deviate from the previously accepted definition of marriage. At least a part of the federalism argument is that the federal government intrudes on the states’ police power when it adopts a law that limits the the effect of the states’ police power.

  20. ARE,
    I have read the Bill of Rights and I even saw Lincoln, but the states rights argument was one of the biggest arguments for keeping slavery in place in the South. Are you suggesting that States have the right to over ride Federal law or the Constitution under the states rights or tenth amendment argument? And yes, while I may be old, I was not around during Lincoln’s time.

  21. raff,

    “And yes, while I may be old, I was not around during Lincoln’s time.”

    I coulda swore that was a “Tippecanoe and Tyler Too” t-shirt you’re wearing in that picture. :D

  22. lol

    Sorry, raff. I couldn’t resist the easy joke. I owe you a beer (or your drink of choice) for that one. :mrgreen:

  23. Cooper was fighting a losing battle 5 minutes into the hearing, and he knew it. It is clear you can’t have it both ways, either it is ok to discriminate against gay people, or you simply cannot deny them a right every other person has already.

    “The state’s responsibility is to protect viable sperm. Cooper has forgotten the number one rule of law: If the facts are against you, argue the law.”

  24. raff, I thought the states’ rights issue was the other way round, that the South objected to Northern states writing laws that were contrary to the federal law that fugitive slaves be returned to their “owners”. i.e. it was the Northern states exercising states’ rights. Slavery was legal, the Fugitive Slave law said fugitive slaves were the property of their southern owners and must be returned. Northern states wrote laws, as a state’s right, that contradicted the Fugitive Slave law.

  25. This is the exact wrong time to be arguing states’ rights, with voter suppression, “shoot anyone who scares you (everyone does),” and subjugation of women laws being enacted by Republican state legislatures.

    Oddly enough (sarcasm), it’s being invoked largely by the same slave states that invoked it in the 1860s. Guess they didn’t get pounded enough, last time. They seem to enjoy forced federal intervention.

    With few exceptions, “states rights” doctrines are used with evil intent.
    Note that I gave myself wiggle room with “largely,” and “with few exceptions.”

    With those caveats (see, I can fracture Latin as well as the next guy), let the whining begin…

  26. Bob K makes a valid point. There are on occasion valid assertions of state’s rights issues, but by in large they are usually asserted by nefarious people with nefarious purpose and the intent to deprive citizen’s of Constitutional rights.

  27. Cooper’s ducking and weaving reminds me of some folks who wander in here and won’t answer a direct question. “It should be illegal, because, um, well because I said so.”

    That kind of behavior reminds me of watching a dog trying to pick up and eat a raw oyster off the kitchen floor.

  28. The “States Rights” phrase keeps getting mouthed by folks who wish to opposed some individual right. The best example is when the Klan comes out to lynch somebody for being black and the feds step in to stop the Lynching. The states righters are outraged that the federal government would intervene in a lynching.
    Liberty interests which are recognized as Constitutionally protected “liberty” interests cannot be stomped on by States. Jim Crow by any other name is still Jim Crow. If you want to outlaw the right of someone to live with a person of the same sex then amend the Constitution.

  29. Gene H as I recall, Utah territory had legalized polygamy, thus polygamy has legal pedigree in US law. It was only outlawed after the Mormon church had a revelation that it was no longer permitted in order to be admitted to the union as a state.

  30. it is the police power of the states that is used to define marriage.

    I fail to see how the police get involved or the police power since Loving and Lawrence put the stake into any possiblity of arrest for adult consensual sexual acts. DOMA simply does what the laws withholding Federal funds from states which do not conform to Federal mandates. Thus the Federal government has every legal right to say who may or may not get SS benefits, child welfare supports, etc..

  31. rafflaw your point was that slavery was a states right even after the 13th amendment. We passed that amendment to outlaw slavery, and if you think that same sex marriage should be a right, then I would think that another amendment would be appropriate.

    I also have to laugh at the gay marriage rights folks in their argument on gay marriage insisting on STATES RIGHTS of all things. I recall that was the same argument used against the Civil rights legislation.

  32. ARE,

    As I recall, accepting the common law was a condition of statehood and that bigamy was still a crime at common law at the time of Utah’s admission. Reynolds v. U.S. challenged that matter and lost.

    “it is the police power of the states that is used to define marriage.”

    And equal protection, therefore equal rights, are a Federal matter.

    The Constitution applies to the states via the 14th Amendment.

  33. Gene H I have no problem at all about the 14th amendment applying the whole Constitutional rights to all the states. That is obvious. The argument which has not been addressed is do the states have the right to define marriage and its conditions, privileges, etc.. I think that they do, and that as long as one does not have to prove ones heterosexuality, gays can and millions of gays HAVE gotten married to persons of the opposite sex. The problem is that you think that just because some wish to redefine marriage that it is a right. The proper way to do this is to do as New York did. They have every right to change their definition of it.

    Then we might have the problem that an amendment might be passed making same sex marriage illegal throughout the US. Think that the SCOTUS can declare an amendment unConstitutional, as the SCOTUS basically did in Plesy vs Ferguson?

  34. “The argument which has not been addressed is do the states have the right to define marriage and its conditions, privileges, etc.. ”

    And that is the Federalism argument.

    The counter argument is Equal Protection, which is a superior Constitutional claim on the merits. There is no Federal interest in the police power of the states as they apply to driver’s licenses and yet they are universally recognized as valid from one state to the next under FF&C. This is due in large part to most state requirements for a DL being generally the same and not on their face discriminatory as a matter of fact, but if they were, the Fed could assert jurisdiction under the Commerce Clause like they did in Heart of Atlanta Motel Inc. v. United States, 379 U.S. 241 (1964) where SCOTUS said Congress could use the Constitution’s Commerce Clause power to force private businesses to abide by the Civil Rights Act of 1964. Because Equal Protection is rooted in the 14th Amendment and it applies to the states, there is a valid Federal interest in state action. Invalidating state laws that discriminate against homosexuals would apply in a manner analogous to the arguments set forth in Loving v. Virginia, 388 U.S. 1 (1967) where miscegenation laws were found to be in conflict with both the Due Process and Equal Protection clauses of the 14th Amendment. This is the Supremacy Clause in action.

  35. The equal protection does not apply to gay marriage since there is no test or law banning gays from marrying a person of the opposite sex. If there were, THEN i would agree that it would be a violation of the 14th. The Virginia law DID ban interracial marriage between persons of the opposite sex. Thus the reasoning in Loving that the state must have a compelling state interest in banning such marriages. I think that Warren would be aghast at the use to which the Loving decision has led. At least Warren had the good sense to get a unanimous decision when the SCOTUS outlawed segregation. it is too bad that our current crop of judicial zealots have no such constraint, on just as divisive and a FAR less clear interpretation of the law.

    In FACT millions of gays have gotten married to persons of the opposite sex and I can cite some well known examples, such as Leonard Bernstein, and Huffington who fathered children. I would guess that their children are rather happy that gay marriage was not even thought of back then, otherwise they probably would not exist.

  36. “The equal protection does not apply to gay marriage since there is no test or law banning gays from marrying a person of the opposite sex.”

    No, but there are laws banning marriage to a same sex person. In fact, 31 states have amended their state constitutions to ban same sex couples from marrying either in toto or in part. You can see a detailed list here.

    The 14th applies.

    Like it not, this is going to happen if the U.S. Constitution still has any validity at all.

  37. Gene H just your say so does not make it so The equivalent case to Loving would be that any person who identified themselves as gay could not legally get married. That would be discrimination since the state has no compelling interest in banning gays from standard marriage as stated in state law.

    You cited English common law as being the reason for not allowing polygamy. I was wondering what English common law says about gay marriage too. Since I am not a lawyer, I don’t know. I also understand that one state, Louisiana does not use English common law. Is that correct? If so what would that mean vis a vis polygamy then? Then there is a question about if the states pass a Constitutional amendment against any state having gay marriage, can the SCOTUS overrule the amendment?

  38. Wow. Allowing blacks to marry whites by your definition changed the “definition” of marriage because they weren’t being prevented from marrying the black person of their choice before? Black people were allowed to marry before loving too, just not to white people. Your saying theres discrimination there? Mr. Erb I’m afraid your a bigot. Oh and english common law doesn’t mention we gay people because we weren’t invented until 1969.

  39. “Oh and english common law doesn’t mention we gay people because we weren’t invented until 1969.”

    lol

  40. Randy,

    “Gene H just your say so does not make it so”

    That is true. Ipse dixit arguments are based in logical fallacy. Too bad for you my argument is based on legal precedent and a firm grasp of legal principle both of which I referenced, ergo, mine is not an ipse dixit argument.

  41. Well we shall see when the SCOTUS rules as to who or what reasoning is correct. I think that there is another question which will arise if gay marriage is held to be a right that cannot be abridged. Then all state laws that prohibit marriage between first cousins will have to be held unConstitutional too, since that is discrimination just as much as that for gays. So a state will have to prove the unproveable as to the rational means test for such. Then we will have to revisit age of consent laws too since they vary. So the SCOTUS can be charged with legislating marriage laws for all the states. I am sure that they will be very eager to do that. I hope Kagan and company have their calenders free.

  42. ” Then all state laws that prohibit marriage between first cousins will have to be held unConstitutional too, since that is discrimination just as much as that for gays.”

    Fallacy of incomplete comparison. There is a valid public health reason for such restrictions where they exist, but no one has challenged these laws to my knowledge. That is probably due to the fact that other states will recognize these foreign jurisdiction marriages under FF&C and apply their laws equally and fairly should the marriage dissolve or other event happen that relate to normal secular civil and contractual rights that arise under the existing state laws.

    http://www.ncsl.org/issues-research/human-services/state-laws-regarding-marriages-between-first-cousi.aspx

  43. ARE,

    And I think that women… ALL women had the right to vote in Utah…. Before becoming a state… If I also recall…. A woman from Montana was elected to the House of Representatives…. After her husband died…. Even though she could not vote for herself…..legally that is Rankin is and was her name… Jeannie or something like that…

  44. Gene,

    If I recall New Jersey is an exception to the law where first cousins can marry…. It may have changed….

  45. AY,

    The states where first cousins can marry are:

    Alabama

    Alaska

    California

    Colorado

    Connecticut

    District of Columbia

    Florida

    Georgia

    Hawaii

    Maryland

    Massachusetts

    New Jersey

    New Mexico

    New York

    North Carolina*

    Rhode Island

    South Carolina

    Tennessee

    Vermont

    Virginia

    *North Carolina- First cousin marriage is legal. Double cousin marriage is prohibited.

  46. anon, The person I believe you are refering to is Janette Rankin who was a radical socialist from Wyoming. Wyoming allowed women to vote so that they could have more votes in their electorate. One wonders too why the 19th amendment was needed since the 14th amendment clearly prohibits discrimination and according to the legal scholars here, all that was really needed was a SCOTUS ruling.

  47. Having lived in Kentucky, I am surprised that they do not allow first cousins to marry. It must be that they don’t bother enforcing the consanguinity laws since I have noticed some traits in their electorate that suggest massive inbreeding. The same can be said of West Virginia too, though I have not lived there.

  48. ARE:

    “anon, The person I believe you are refering to is Janette Rankin who was a radical socialist from Wyoming. Wyoming allowed women to vote so that they could have more votes in their electorate. One wonders too why the 19th amendment was needed since the 14th amendment clearly prohibits discrimination and according to the legal scholars here, all that was really needed was a SCOTUS ruling.”

    No. Jeanette Rankin was a Republican from Montana. She was the first woman elected to the U.S. House of Representatives. Her statue is in Statuary Hall in the U.S. Capitol.

    In addition to her Republicanism and opposition to the New Deal, Miss Rankin was a pacifist and an isolationist. She voted against U.S. entry into World War I and lost her seat in the next election. She was reelected to Congress in 1940 and voted against U.S. entry into World War II, only to lose her seat again in 1942.

    She also participated in protests against the war in Vietnam in her later years. You may not like her principles, but Miss Rankin had them in spades. Radical? Perhaps. A socialist? Hardly.

    By the way, the number of voters in Wyoming (or elsewhere) was and is irrelevant to anything other than the cost of counting votes. Representation in Congress is based on population. It’s right there in the Constitution.

    You need to educate yourself.

  49. AY,

    Interesting. An interesting chart too. And yet the issue of validity never really seems to come up in our very mobile society when it comes to family law even in states where the marriage can be considered invalid. They do the sensible thing (usually) and apply the law of the original jurisdiction. Conflict of laws in an interesting area of study in and of itself.

  50. Why does anyone want to get married? Pressured into it. What if you had a law that said you can leave your estate to your best pal, your kids, your dog, and let any of them take half your pension or social security benefit when you croak. That would solve ts marriage apCray. Then we would not have to have all the trappings like bridal showers, meet the mother in law, dowery, preacher preacher I declare, and that that. We need to end marriage, not expand it. It is akin to slavery. Wife wife, bo bife, nanna fanna fo fife, fee figh mo mife, Wife. Yck. I say, hump em if ya gottem.

  51. ARE,
    You may be right on the 19th not being necessary had the SCOTUS ruled. The problem is getting the right case in front of them, and then having a majority ruling. In some cases an Amendment, difficult as they are to get passed, is the quickest and easiest way. If it had not been for the 19th Amendment, I have no doubt that in a few jurisdictions, women would still be arrested for trying to vote.

    It may eventually come to that with the gay rights issue. On the other hand, the current Justices have to be aware of trends, and Roberts above all, does not want to be remembered as a Chief Justice who was on the wrong side of history.

    Finley Peter Dunne spoke through his comic character Mr. Dooley:
    “No matther whether th’ constitution follows h’ flag or not, th’ Supreme Coort follows th’ election returns”

  52. Porkchop, I should have looked up her bio first, and just off the top of my head I was wrong about the state. In any case, she was indeed a radical, and at that time, it was the GOP which was the progressive party like Teddy Roosevelt who ran on the Progressive Party ticket in 1916 when he was denied the GOP nomination. From further research I found she advocated nationalizing major industries, welfare, and other measures to assist the workers. She did not oppose the New Deal. She did hate FDR mainly because of his war preparations in 1940. She had some raw edges too.

    I am fully aware of how electoral votes are apportioned, and the point of womens franchise was to induce more women to move west. A young woman who wished to have full citizenship rights would find Washington state and Montana very attractive, and hopefully move there. Prior to that many of the women who lived in those states had moved west to mine the miners as their occupation. So making the vote available was a good inducement for attracting more women. You can take a very nice tour of underground Seattle which explains that part of settling the west.

  53. Online petition wants Justice Antonin Scalia to recuse himself from gay-rights decisions
    By: Erin Sherbert
    03/26/13
    SF Examiner Staff Writer
    http://www.sfexaminer.com/local/2013/03/online-petition-wants-justice-antonin-scalia-recuse-himself-gay-rights-deciscions

    Excerpt:
    An online petition began Tuesday to persuade U.S. Supreme Court Justice Antonin Scalia to recuse himself from deliberating on Proposition 8 over comments he made at the hearing.

    At one point during oral arguments in the case of California’s voter-approved ban on same-sex marriage, Scalia said, “When did it become unconstitutional to exclude homosexual couples from marriage?”

    After a few back-and-forths with Ted Olson, the attorney representing the plaintiffs, Scalia finally concluded, “How am I supposed to know how to decide a case, then, if you can’t give me a date when the 
Constitution changes?”

    The comments sparked a MoveOn.org petition to collect signatures from people who would like to see the notoriously conservative justice recuse himself from both the Prop. 8 and federal Defense of Marriage Act cases, the latter of which is being heard today.

  54. How about answering Scalia’s question instead of dodging it? I think that would be a better answer, and making that question is hardly grounds for recusal. I am struck at how reluctant most gay marriage proponents are to answer simple questions. One states that using English common law is reason to ban polygamy and restrict it from the arguments in favor of gay marriage, but then refuses to state how English common law relates to gay marriage. I assume that English common law does not recognize gay marriage as being a right. They do argue that the 14th applies and thus mandates gay marriage, but then refuse to apply that standard to polygamy and duck behind English common law. That is very inconsistent it seems to me.

    Then Scalia has no problem legislating from the bench in Citizens United, but cannot do the same in gay marriage. If he could stretch the law of corporate personhood to give companies all the human rights, he should not have a problem with gay marriage then. Of course, since there is a movement to amend the Constitution as a result of Citizens United, there may well be another movement to amend the Constitution to ban gay marriage. Since 40 states do not allow it, I would think that such an amendment could pass now. So for gay marriage proponents, I would think twice about getting what you wish for from the SCOTUS. Such an amendment would NOT have to go through the Senate either since it only requires two thirds of states to propose it and three fourths to approve it which they will have with 40 states.

  55. ARE,
    Trying to get Scalia to be consistent on the law appears to be hard, until you realize he is perfectly consistent when applying his version of the law to the litigants themselves. Rich people and corporations good. Poor people, brown people, and other minorities not worth bothering with–unless they are multi-billionaires.

  56. English common law was silent on homosexual marriage whereas bigamy was a well defined crime.

    Specious reasoning.

    Also, rights are inherent and retained, not granted by the state. In the state of nature, you are free to marry whomever you wish with no restrictions. As a society, we’ve deemed it proper to limit that right in certain ways already: you cannot marry children, animals, within certain degrees of relation (in some jurisdictions) or inanimate objects. The 9th Amendment states “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” What is being argued for here is a further restriction of a right retained, not an expansion of a right granted.

    Your backward thinking about the nature of rights fuels your backward logic about this argument.

    Try again.

  57. OS You forgot one important constituency in Scalia’s pantheon of holy writ, the GOP in Bush vs Gore. I was astounded that such a proponent of states rights would jump in on the side of the Federal government deciding how the state would conduct its elections when there were more than adequate measures in the Constitution and settled law on this matter. Then we have Thomas who is his twin, angling for a good reason to simply phone in his part in SCOTUS procedings since he doesn’t ever speak or ask questions.

  58. The very first commentor , Mr. Erb, points out, or poses the question, Does the state have the right to define marriage as it sees it. Other comments above address the notion of “States Rights”.

    First, allow this dog to address the word “States”. In the American context this zeros in on the lower forty eight and Alaska and Hawaii. But in the world context there are territories of earth that can qualify as nation states. The United States of America is a nation state which has two larger tiers of government, Federal and State, and within states county, municipal and other,

    Second, allow this dog to address the word “Rights”. This nation comprised of the lower 48 plus two more states embraced a written document called the Constitution which references another document called the Declaration of Independence and in that time period of the drafting of those two documents the people who agreed on those words determined that there were such “rights” that humans had which were “inalienable”– that they were God given and could not be taken away lawfully. Further, these rights did not derive from some King, Queen, or Lord. A oligarch was a lord too without the name Lord so and so. Then after the Civil War there occured a Second Revolution in which the people passed three constitutional amendments, numbers 13, 14 and 15. In this Second Revolution the rights of all humans were further protected, enumerated and held divine. Both the freed negro and the poor white trash go an elevation and although we did not have formal Lords, we still had these oligarchs who had been holding sway. The Constitution and Amendments does not speak to States Rights but speaks to certain enumerated state “powers”. Never the twain shall meet– state powers and states rights.

    Third, the derivation of the code words States Rights. In the aftermath of the Second Revolution the oligarchs wished to still Lord it over the poor white trash and the freed slaves and they enacted within certain states strict laws and ordinances of state and local act or ordinance which put people in thieir perceived proper place. Then there was a human rights backlash against this and efforts from the Federal layer of government to curb the deprivation of God given inalienable rights to life, liberty and property by these Red Neck Southern George Wallace types was met with fury. So the Code Words: States Rights was enacted by the likes of George Wallace and Lee Atwater to appeal to the rednecks, whether they lived North or South, to curry their vote and favor.

    Fourth, The Southern Strategy. Lee Atwater of South Carolina outlined the Southern Strategy to the new batch of Republicans who were no longer the Party of Lincoln. Google Lee Atwater and the Southern Strategy for a full report. The appeal was to go after former voters who voted Democrat and get them over to the Republican lever on the voting booth. If someone was lynched by the Klan for merely being a Negro and the Federal Government stepped in to stop it, the white rednecks complained of violations of States Rights. What they allude to is the interference with their lynching when their own state looked the other way. To further these thought processes the Lee Atwater Southern Strategy was to develop code words such as forced busing to appeal to the bigot within thee. Nixon signed on in 1968 after Godlwater had lost in 1964 and thereafter the senile guy Ron Raygun signed on. The Southern Strategy worked. The South is Red.

    Fifth, States Rights and Gay Marriage? What is the connection? A so called Federalist would argue that it is up to the individual lowe 48 states plus Hawaii and Alaska to “define” marriage. Here the words State Powers get intermingled with States Rights. Question: Is the concept of the right to marry one of one’s own gender an “inalienable right”? Is that a right of privacy that a pirate territory, a nation state or a state like Arkansas can not take from you? The analogy would be your right to bear arms or to free speech. Those two rights are “enumerated” in our written Constitution. Question: Why should the federal government have the power to intrude in this right of privacy or right of free association between two humans?

    If you get hooked into the notion of “States Right” which is alien to our inalienable rights, then you will go off the Tammiammi Trail on this issue.
    There are State Powers enumerated in our Constituion. We do not recognize non enumerated Powers of our states or federal government. There are individual Rights which we as humans have– some, like the right to bear arms are enumeraed in our Constitution and some like the right of privacy are no so enumerated but are recognized as preserved. Those unenumerated rights are evolving.

    When you listen to the oral arguments in the Prop 8 case you must question the intelligence of our Supreme Court Justices. It reminds me of mindless wrestling. If you hear a pundit arguing about States Rights peal under the layer of diatribe and you will find a closet bigot. A closet bigot is akin to a closet gay. They live with code words and appeal to your prejudices with code words because they can not get away with calling people the N word or calling the litigants in this Prop 8 case Faggots.

    Thats the way this dog sees it on Easter Sunday. We dogs call Easter Sunday “Clairification Day”. We strive to explain things to our pups about the Easter Bunny, rising from the dead and such notions as States Rights.
    I had to give the rap to the pups so I thought I would pass it on to the humans.

  59. randyjet,
    True dat! I have no doubt Scalia is a very smart man. It is a shame he wastes all that intellect trying to circumvent doing the right thing in favor of being nothing more than a lap dog for the vested interests.

    I have much less confidence in Thomas’ intellect. As far as I can tell he is a potted plant who, like a venomous Triffid, only gets into motion when it is time to feed.

  60. Jack Balkin:

    Supreme Court Arguments We’d Like to See:

    JUSTICE SCALIA: You — you’ve led me right into a question I was going to ask. . . . I’m curious, when -when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? . . .

    MR. OLSON: Well, according to your dissent in Lawrence v. Texas, the Court decided that issue in 2003.

  61. Gene H the reason English common law is silent on gay marriage is that the term “marriage” ONLY appled to heterosexual marriage, just as in the Loving decision. The right of marriage only applied to heterosexual marriage since that same SCOTUS let stand laws that criminalized homosexual conduct. So it takes some delusional thinking to believe that Loving applies to gay marriage since it had not even been thought of or raised at the time.

    Then there are many states which recognize common law marriage, and if we are to believe your contention, then gay marriage already exists in those states NOW. I would be most interested in the case law on that where gay common law marriage is recognized. Somehow I doubt that you can find any, and thus your contention that English common law allows or is silent on gay marriage.

  62. “Gene H the reason English common law is silent on gay marriage is that the term “marriage” ONLY appled to heterosexual marriage,”

    Argumentum e Silentio (Fallacy of Argument From Silence) and pure supposition in support of outcome determinism and confirmation bias equates to multiple fails in logic.

    Try again.

  63. A lot of the people supporting the Vote of The People in the California Propostion 8 case are thus supporting the Right of a Majority to suppress a Minority. If you transpose this scenario to Mississippi in 1964 they voters would have voted in a proposition or petition in favor of segregation now, segregation forever. A majority, whehter exprssed through a legislature or by a vote in a initiative petition, cannot trump, even with the support of Donald, an individual right which is recognized by the Constitution. There one must look to enumerated rights and then unenumerated rights such as privacy.

    JoeBob here at the marina, a human, says to the gay guy: Shake Up Dont Get Married. Well that doesnt address Prop 8. Joe Bob says he also believes in States Rights. He is against forced busing. With JoeBob there are certain code words that ring his bell.

  64. Gene H When Portland OR was issuing marriage licenses to same sex couples, the Oregon Supreme court ruled that marriage as stated in OR law only referred to opposite sex unions, even though the statute had NO mention of sex in it. Then we have the fools in Texas who decided to pass an amendment banning same sex marriage and civil unions. They were so broad in the language that they banned ALL marriages if you take the text literally. I can cite Barbara Radnovsky as sharing that opinion too. But as we all know in Texas, you cannot find a judge who would actually apply the law as written. Unfortunately, the law in Texas is rather fungible and is only of use as an advisory or guidelines. Politics trumps the law.

    As for asking you to prove a negative, I am just asking for any case law which allows for common law gay marriage if your contention about English common law is correct. THAT is not trying to prove a negative since it should be available if you are right. SIMPLE.

  65. Sorry I’m late to the party on this important topic and the thread it’s produced.
    Good work Nal because it is important to get the flavor of the Judges line of questioning. My own feeling is that for once SCOTUS won’t punt and that the rulings will be enough to ensure the legitimacy of Gay marriage quite soon. One must note that in reality, despite political demagoguery this is neither a liberal, nor conservative issue, merely one of obvious human rights.

  66. Simple is a good word to describe your logic, Randy, but you are indeed asking me to prove a negative since you are arguing from silence in the first place. Silent means in this context saying or recording nothing on a particular subject.

    You still cannot escape that your entire premise is based on a backward definition of rights as being granted by the state when they are not. The function of law under the social compact is to restrict rights, not grant them. That is how all legal systems work regardless of whether the method of determining what rights and how to limit them is accomplished via democratic process, fiat, or some other method.

    It is funny though to watch someone have a desired conclusion that is unsupported by logic or fact contort themselves in a effort to reach that desired conclusion.

    It’s a lot like watching Scalia’s pretzel logic.

    Outcome determinism is a terrible thing.

  67. Gene H I see that your contention is that if the law does not ban something, it is allowed. So one must then say that common law gay marriage is also legal in those states that permit common law marriage. Is that a fair interpretation? Then one should be able to find case law asserting that right in some court when a gay common law couple wish to claim their rights under your definition.

    I have to say the law does indeed grant rights, othewise what is the point of the bill of rights?

  68. “Gene H I see that your contention is that if the law does not ban something, it is allowed.”

    Again, the argument from silence. I said that rights are inherent. When a society is silent on an issue it does not mean prohibition or protection, merely silence.

    “So one must then say that common law gay marriage is also legal in those states that permit common law marriage. Is that a fair interpretation?”

    No. It’s a straw man. Silence on the issue means it is undecided, however, in theory the answer would be “yes” . . . unless society chooses to limit that right.

    “Then one should be able to find case law asserting that right in some court when a gay common law couple wish to claim their rights under your definition.”

    You know, asking me to prove a negative over and over again isn’t going to get you an answer any better than the first time you tried that tactic. Feel free to repeat yourself though. I like watching someone bang their head against a wall.

    “I have to say the law does indeed grant rights, othewise what is the point of the bill of rights?”

    To protect certain rights specifically. Apparently you have a problem understanding both the nature of the social compact and the Bill of Rights in the context of the 9th Amendment. The Bill of Rights was designed to protect certain rights explicitly, not as a grant of rights from the state. That would applying your backward understanding of the nature of rights. The Founders knew what they were doing and they knew what they were doing according to proper legal theory including the social compact model of law. If you don’t think they understood the law in this manner, then you clearly don’t understand the plain language of the 9th Amendment.

    Try again.

  69. And if you think the Founders wanted to create an authoritarian form of government? You don’t understand the essential nature of our particular social compact which is found not just in the Constitution, but in the Declaration of Independence as well which is one big eloquent middle finger to the authoritarian regime of King George III.

  70. gENE h:

    there you go again, stating that pesky self evident doctrine that rights are man’s by his nature and do not come from government or other men (kings).

    I am surprised randyjet doesnt understand that.

  71. The Declaration is NOT part of our legal code, the Constitution is. Also, then I wonder how you interpret the military draft. Is that not a gross violation of the right to LIFE? Then we have the early Congress mandating that all male citizens keep and bear arms in the militia. That also infringes on ones right to be left alone in ones life. If all that is permissible under our Constitution, then how does that mean that states cannot ban gay marriage since taking ones life away by legislation is a greater violation of ones right to life. You cannot get more fundamental than that. All other rights pale in that comparison, and even the Mass Supreme Court in their ruling on gay marriage conceded that the state has the RIGHT to take away young men’s lives to serve the larger states interest.

  72. ARE:

    “it is the police power of the states that is used to define marriage.” [quoting me.]

    “I fail to see how the police get involved or the police power since Loving and Lawrence put the stake into any possiblity of arrest for adult consensual sexual acts. DOMA simply does what the laws withholding Federal funds from states which do not conform to Federal mandates. Thus the Federal government has every legal right to say who may or may not get SS benefits, child welfare supports, etc..”

    The “police power” in constitutional law refers to the general power of the state governments to regulate behavior. It does not refer to the authority of a police officer to arrest someone for a specific action, although the authority to make an arrest is derived from the “police power”. The states have a general police power, limited only by constitutional constraints, such as guarantee of a republican form of government, the Fourteenth amendment, and the parts of the bill of rights applicable to the states through incorporation in the Fourteenth Amendment. The federal government does not have a general police power, as I said above.

    “[A]t that time, it was the GOP which was the progressive party like Teddy Roosevelt who ran on the Progressive Party ticket in 1916 when he was denied the GOP nomination.”

    Wow, have you got your history backward.

    First, the word “progressive” did not carry the same meaning in the early 1900’s as it does today.

    Second, Teddy Roosevelt ran under the Progressive Party banner (his own creation) in 1912, not 1916. It was a four-way race between incumbent Republican President William Howard Taft, Democrat Woodrow Wilson, “Progressive” Teddy Roosevelt, and __Socialist__ Eugene V. Debs. Taft was from the conservative wing of the Republican Party; Roosevelt was from the progressive wing of the Republican Party. Debs got 6% of the vote. Roosevelt got 27+%; Taft got slightly more than 23%. Wilson won the election with 41+ percent of the popular vote and a landslide in the electoral college. A few additional candidates split the rest of popular vote

    Third, if the republicans were the “progressive party” in 1912, then there would have been no need for the formation of the Progressive Party so that Roosevelt could challenge the Republican nominee. The main ideological differences between conservative and progressive Republicans involved among other things, tariffs, protection of national parks, antitrust enforcement, and regulation of child labor.

    After 1912, the Progressive Party declined steadily and by 1918, almost all Congressional “Progressives” had rejoined the Republican party. In 1916, Roosevelt refused to run on the Progressive ticket and endorsed Republican compromise candidate Charles Evans Hughes, who lost to Wilson. That was the year Miss Rankin was first elected. Running as a Republican that year hardly made her a radical — except for the then somewhat radical idea of women’s suffrage, which she supported. After that election, the conservative Taft wing dominated the Republican party for decades. (The Progressive Party of 1924 was a new, different party created by Robert LaFollette to run against Republican Calvin Coolidge and Democrat John W. Davis.) Most former “small-p” progressives (that is, rank-and-file supporters of the Progressive Party) became Democrats in the 1930’s and supported the New Deal. Again, running for office as a Republican in 1940 was hardly an indicium of radicalism on Miss Rankin’s part. If anything, it was the opposite.

  73. Randy,

    Just because the Declaration isn’t part of our legal code does not mean it does not inform the Constitution. Tyranny is a form of authoritarian oppression. Our government was founded on the usurpation of tyranny and the prevention of tyranny (which goes to show how far down the authoritarian rabbit hole we’ve fallen since our founding, but I digress). The rest of what you say is mostly either gibberish or unrelated to the right at hand.

    But please, gyrate some more.

    The SHOUTING is a nice touch.

    It really conveys the essence of your frustration at simply not knowing what you are talking about and the jurisprudence interfering with your desired (and prime facie oppressive) outcome.

  74. Randyjet,

    The authority for conscription is derived from Congress’ constitutional authority to “raise and support armies.” Various challenges to the draft have been raised over the years, and all have lost, with the limited exception that conscientious objectors cannot be required to bear arms in combat (but they can be required to engage in support services).

    The draft has nothing to do with the issues you raise. “The right to be let alone” does not limit Congress’ power to impose conscription.

  75. The draft was ruled constitutional back in 1918 by the SCOTUS:
    Selective Draft Law Cases, 245 US 366 (1918)

  76. Gene H since you are a lawyer and admitted that in theory at least gay common law marriage might exist, you can put it to the test. Find some gay couple in a common law state and see if they can be denied some rights granted to ordinary common law couples. if they are, then you could file suit to try and enfoce their rights.

  77. You asking me to prove a negative is still funny, Randy.

    You’re simply wrong about the nature of rights and what our Constitution does and does not do.

    Deal.

    If you don’t approve of gay marriage? Don’t marry one. Problem solved.

  78. ARE:
    The few states which recognize common law marriage only recognize them between different-sex partners who are eligible to marry. The operant words are eligible to marry. Each of these states have different controlling statutes for what constitutes a common law marriage but the one thing all have in common is none of them recognize same sex unions of any kind.

    Alabama
    Colorado
    District of Columbia
    Georgia (if created before 1/1/97)
    Idaho (if created before 1/1/96)
    Iowa
    Kansas
    Montana
    New Hampshire (for inheritance purposes only)
    New Mexico
    Ohio (if created before 10/10/91)
    Oklahoma (possibly only if created before 11/1/98. There are legal questions still unanswered as to whether common law marriages formed in that state after 11/1/98 will be recognized.)
    Pennsylvania (if created before 1/1/05)
    Rhode Island
    South Carolina
    Texas
    Utah

  79. Just because the Declaration isn’t part of our legal code does not mean it does not inform the Constitution.

    Well if that is the case and your previous assertions that our rights derive not from the government and our laws, but inherent rights, then you have to still explain the justification for the military draft. That takes away, life, liberty and the pursuit of happiness, unless you enjoy getting shot at and killing people.

    In a previous post you stated that in a state of nature one could marry any person and you have that right. But unfortunately in a state of nature there are no laws and marriage is a social and legal construct which is granted by the state for its own purposes as well as that of the individuals involved

    . What is being argued for here is a further restriction of a right retained, not an expansion of a right granted.

    The law had never allowed gay marriage ever, so how is that a restriction since it never existed before in our law? You could say the same thing about women’s right to vote too. So there should be no need for the 19th amendment either. Were the founders and writers of the Constitution remiss in leaving women out and denying them their inalienable rights? They most certainly did NOT think so since they all supported male only franchise. So the founders did not know what they were doing then according to you and your conception of US law.

  80. randyjet,

    the Supreme Court ruled on that back in 1918. In case you missed the link, here it is again.

    http://biotech.law.lsu.edu/cases/nat-sec/selective-draft.htm

    This is a landmark case, and it was decided by a 9-0 vote of the Court. The decision was handed down by Chief Justice White, who said, among other things, “As the mind cannot conceive an army without the men to compose it, on the face of the Constitution the objection that it does not give power to provide for such men would seem to be too frivolous for further notice.”

    This opinion is the result of combining several cases up for appeal to the Court. The relatively brief opinion neatly dissects all the points of appeal.

  81. “marriage is a social and legal construct which is granted by the state”

    Really. Marriage is actually a commitment between two people to love and care for one another and that can happen regardless of there being laws or not.

    You just don’t get that rights are inherent, do you, Randy?

    And that absolute freedoms are the state of nature and that we retain those rights until society agrees that we sacrifice them for mutual benefit.

    There is no such thing as a right granted by the state as they apply to natural (i.e. flesh and blood) citizens.

    That is the nature of the 9th Amendment and the social compact, Randy.

    Our society taking this long to address the issue of gay marriage does not mean that the right does not exist, only that we are tardy in addressing it.

    To believe otherwise is to either believe a fairy tale version of jurisprudence or a tacit endorsement of authoritarianism which is an anathema to democracy and any form of government that values freedom.

    The fact of the matter is that your definition of marriage is religious. Don’t b*tch to me that you aren’t religious either. That’s irrelevant to the fact your definition of marriage as strictly heterosexual only and that is strictly a fundamentalist Christian point of view. The 1st Amendment prohibits using the force of law to force your (yes – your) religious views on others using the force of law. You can be a bigot all you want, that is your choice, but you cannot force your bigotry on others using the force of law under both the 1st and 14th Amendments. Again, if you have a problem with homosexual marriage? Don’t marry one. Problem solved. The recognition of the right for homosexuals to marry isn’t going to force you to like or participate in it or turn you yourself gay. You need to afford others the same right you enjoy and stay out of their bedrooms and interpersonal relationships. Whether you will or not is doubtful.

    What is being argued for here is a further restriction of a right retained, not an expansion of a right granted.

    That is how rights and laws work under the social compact model of law. End of discussion. Disagree all you like. It still won’t make you right as a matter of fact.

    If that bothers you?

    Too bad.

    Kinda sad too that you’re apparently so insecure in your own sexuality that you want to oppress others. You’re a grown man acting like a sexually immature and insecure teenager. Get with it, man. If you’re not a homosexual? This question at bar has zero impact on your life. Nada. Other than you’re offended by it all. Guess what? You don’t have a right not to be offended. Offense is a subjective (and usually emotional) reaction. It’s the only thing in this situation you have any control over, however.

    So given that this is going to happen probably sooner rather than later, your options are to go around being mad and hurt about it or accept that what others do in their pair bonding – so long as they are of majority and otherwise capable of granting valid consent – is simply none of your business.

  82. Now if you’ll pardon me, I have guests arriving shortly and I’m trying to get them fed and out the door before “Game of Thrones” comes on.

  83. OS I have absolutely no quibble with the draft since I was personally subject to it and volunteered for military service anyway. The problem is that in trying to understand Gene H position, what I gather the assertion is that all US citizens have certain inherent rights which can sometimes be taken away for the state purposes.Then in accordance with inherent rights that these exist no matter that they have never been used or even allowed. such as in the case of womens franchise or gay marriage. It is rather strange that one could state that gay marriage has existed as a right for 237 years, but only until recently has been allowed in some states. Then I guess that women had the right to vote for144 years, but could not do so until 1920 in most states. Having a right that cannot be legally exercised would lead most folks to conclude that such rights did not exist at all. This also leads to the situation that all one has to do for some “rights” is to declare that right, and even if explicitly denied, it makes no difference.

  84. Randyjet,

    There are two separate issues here, conscription and gay marriage.

    The right not to be conscripted, if it existed in principle, was done away with when the Constitution was ratified. That’s the point of the “raise and support armies” clause of the Constitution. See The Selective Service Cases at the link provided by Gene H.

    As to the lack of a pre-existing right to gay marriage at common law, I think you are right, but not for the reasons you suggest. Sodomy was criminalized formally in England under Henry VIII with the Buggery Act of 1533. I think that it is fair to surmise that if two males who had sex were subject to capital punishment (and they were until 1861), it is pretty unlikely that the common law would recognize a marriage between them. Given the strong condemnation of homosexuality in the Christian church from antiquity, it is pretty unlikely that the church (which was in charge of marriage) would have married them anyway. It is not a great leap, I think, to conclude that it would not have married two women, either.

    In order to find a right to gay marriage, one has to look elsewhere.

  85. One need look no further than the essential nature of marriage: a promise between two parties given with valid consent in exchange for something of value (specifically a counter-promise). State involvement and valid interest in marriage is no deeper than that. It can’t be. The 1st Amendment prohibits the endorsement of one religion over another with the Free Exercise and Establishment Clauses. To impose any religious definition of marriage will not pass the Lemon test.

    1. The government’s action must have a secular legislative purpose;

    There is no secular purpose but oppression of a minority in denying homosexual couples the same legal protections and obligations heterosexuals enjoy. No one has yet to name a specific harm done to anyone by recognizing these rights formally, yet there is a long list of grievances and actual harms created by denying them.

    2. The government’s action must not have the primary effect of either advancing or inhibiting religion;

    To narrowly define marriage as a strictly heterosexual relation is primarily advancing a fundamentalist view of Christianity and inhibiting more liberal and progressive forms of religious and secular practice. This runs afoul of the 1st Amendment on its face as well as the 14th Amendment’s Due Process and Equal Protection Clauses which is relevant despite not being formally part of a Lemon analysis.

    3. The government’s action must not result in an “excessive government entanglement” with religion.

    The only way to avoid excessive entanglement is to recognize the equal rights the LGBTQ community and their supporters are demanding. Any other solution puts government in the role of an enforcer of religious dogma and there is hardly any entanglement more excessive than that.

    In the state of nature, one is free to make these promises with whomever they wish. The right exists inherently. How we as a society choose to limit it is the question. No minority in our history has ever gained their inherent rights without demanding they be recognized.

    The only valid exercise of governmental power here is as they relate to the contractual nature of marriage.

  86. Randy,
    Many rights have been there since time immemorial, but the hand of lawmakers and religion–sometimes you cannot tell the difference–have intervened to violate those rights. The Egyptians kept the Jews in slavery for a long time. Because they did so did not make it right. The people finally had enough and rebelled. Same with women voting and the right for interracial couples to marry. Lawmakers sometimes have to be prodded to bring laws into line with what is moral and what is a divine right since day one. I find it laughable that religious people like timmy believe that you have to answer to a Higher Power in order to make the right moral choices. Tell that to all the people who were burned at the stake. Those who performed such acts under the name of religion had a strange sense of ethics. Either you have an ethical and moral code or you don’t.

    What we have going on is a concerted effort to REMOVE civil and legal rights from people who have every moral right to exercise them. I don’t thing gay people need to be told not to complain when there is an effort to make them 3/5 of a citizen. I believe we have heard that before. It is a path already trod, and not one we need to revisit using the excuse of protecting “traditional marriage,” whatever the hell that is.

    I have a feeling at least part of the foregoing is incomprehensible.Just ignore that part. I have been up twenty hours for the third day in a row, and need to be up at 4:30 again in the morning. So, bonsoir.

  87. Gene H.

    As a libertarian of sorts, I agree that the government really has no business getting involved in marriage — period. I agree with your position philosophically. I really don’t understand the purported “harm” that my wife or I might suffer because two gay men get married. I really don’t see why we should be concerned about it — no one proposes (no pun intended) that unwilling participants be required to marry someone of their own gender.

    That said, I think your First Amendment argument goes out on a long, long limb, particularly, the second and third points of your iteration of the Lemon test. The fact that fundamentalist Christians are particularly noisy on the issue of same sex marriage does not mean that the government is excessively involved in religion, as in the case of, say, mandatory school prayer, or that the government is advancing or inhibiting religion. Non-religious people get married all the time, often without religious ceremonies at all. It would be different if there were some religious test for marriage, but there isn’t. The fact that the law’s effect parallels the result desired by those with fundamentalist religious beliefs simply isn’t enough.

    So, you still have to look elsewhere for such a right.

    By the way, which state of nature are you referring to? Rousseau’s? Or Hobbes’ “war of all against all”? In the latter, the minority generally loses.

    It’s also a mistake to describe all of those religious people who oppose same sex marriage as fundamentalists. “Fundamentalism” is an evangelical protestant phenomenon, but the Roman Catholic Church has been ardently opposed to homosexual behavior for the last couple thousand years, give or take a century or two. I’m old enough to remember when protestants still spent a lot of time worrying about the Catholic threat to the American way of life. I find it odd and bizarrely amusing that there is such community of belief among fundamentalists and Catholics these days.

  88. Porkchop,

    The issue isn’t a per se test. The issue is the definition that is inherently religious in nature and ignores the essentially contractual interests and relationship. There is no way you can use a religiously based definition of marriage as the sole province of the heterosexual and not be advancing or prohibiting one religious dogma over another. It is a de facto test.

    “So, you still have to look elsewhere for such a right.”

    No, I don’t. The right exists in the state of nature as by either Rousseau or Hobbes definition the state of nature is a lawless state. The tyranny of the strong over the weak expressed in Hobbes does not negate that two people giving valid consent for exchange of mutual value only requires two people to agree – their gender is irrelevant. Of course, under a state of nature, should one of the parties break their promise there is no enforcement but self-help. That is where government comes into play like they do in the enforcement of any contract.

    Asking for any other “source” for the right begs the question there is another source for rights. There isn’t under the social compact unless the form of government is a tyrannical one that views citizens as property and therefore in an exclusive position to grant rights rather than recognize and protect the inherent rights of citizens or agree to limit them for mutual benefit. The entire premise of our social compact is based in part on the usurpation of tyranny. There is no other source of rights but those inherent in the state of nature is how our form of government works per the 9th Amendment. Or are you saying that in a state of lawlessness that two people of the same sex would never pair up? Science indicates otherwise as homosexuality is not just a behavior in humans but in animal species as well. The last time I checked, they don’t have government.

    Also note, I used a lower case “f” on fundamentalist to denote socially retrograde practices in general. I could have just as easily put in “fundamentalist Islam” and the sentence has the same meaning. I questioned using “Christian” in writing that sentence. Perhaps I should have left it out, however, as you note, those making the biggest noise are indeed Fundamentalist Christians. In the end, that’s a distinction without a difference as restricting marriage to heterosexuals only is using a religious definition under various dogmas, not a contractual definition, and in the process oppressing a minority for no mutual societal benefit as it eliminates no specific harm while creating very specific harms in said minority.

    The excessive entanglement argument follows naturally once you realize a religious definition for marriage creates a de facto test. You have no issue with the first prong, but only failure of two prongs is required for a Lemon violation. It’s a strong argument. You’ll have to go much further to convince me it’s wrong.

  89. Gene H.

    As a statement of political philosophy, I generally agree with you. But as a legal argument, I don’t think your argument works.

    First of all, whether they thought of it as a social compact or not, I think that there have been few instances of an formalized, marriage-like contractual same-sex relationships in history. The Spartans, I have read, had such a relationship between an older warrior and a younger warrior. Perhaps there have been others, but if there were, they seem to have disappeared when the social contract came along.

    Second, many of the laws and customs governing marriage have nothing to do with religion, but rather with property and descent. These things varied among societies, but women were treated as chattels, means of reproduction to be acquired. “Love” really had little to do with marriage. Certainly, fathers might generally have an interest in arranging marriages where their daughters were treated well, but that didn’t mean that they necessarily sought out, or allowed their daughters to seek out, a love match. As to their sons, they sought to acquire a bride who would provide lots of children — some of whom might survive to adulthood to carry on the family name.

    Prior to the Christian era, for example, Roman marriage was a purely contractual matter between families. Religion had no role, yet, as far as I know, the Romans had no contractual marriage relationship available for two men.

    One might argue that the property and descent considerations were really only limited to the upper class, but the poor also had an interest in the economic side of marriage — more children meant more support in old age (such as old age was in those days).

    I think one has to separate the marriage issue from the general demonization of homosexual behavior. Certainly both the Old and New Testaments condemned it, and in a tone more harsh than some other contemporary societies of antiquity. Many, if not all, Islamic countries take a similar view even today. There is certainly no reasoning with people who “know” that God by any name has told them that homosexuals are bad.

    After the Christianization of the Roman Empire, the church gradually insinuated itself into the business of regulating marriage, but it didn’t really change the fundamentals — they continued essentially the same practice, but changed the location of the ceremony and the words spoken to solemnize the relationship.

    The likelihood is that somewhere in the state of nature, there were instances (probably lots of them) of two guys hooking up, and perhaps staying together for life. There was less likelihood, I think, of two women hooking up as an independent unit, because women in most societies didn’t have much choice in the matter of mate selection. Unless there was some independent reason to recognize such relationships, economics were against their survival. If, say, the two guys could set themselves up as shamans, there might be some value to the community, but without children, they would eventually become a burden on the community, and hence undesirable.

    The libertarian ideal that one should let people alone is a relatively new one. It wasn’t until 1791 that the French abolished the crime of sodomy along with blasphemy, heresy, and witchcraft — all as victimless crimes.

    I just don’t see the Supreme Court buying into an establishment clause argument. You don’t have to go to a religious body in order to be married; you don’t have to acknowledge a deity to get married; in some places, you don’t even have to have a ceremony of any kind to get married. Moreover, it doesn’t necessarily advance the interests of religion, either — a heterosexual marriage that produces lots of free-thinking atheist children is not what the religious are aiming at. The only way the current system could be said to advance religion is if it limited marriage to the religious and required that all children be indoctrinated in religion from the cradle.

    So, I still think that the only legal arguments that have a chance are the equal protection and federalism arguments, and the federalism argument is probably the stronger of the two.

  90. I didn’t say it was the best argument, Porkchop.

    I said it was strong.

    “First of all, whether they thought of it as a social compact or not, I think that there have been few instances of an formalized, marriage-like contractual same-sex relationships in history. The Spartans, I have read, had such a relationship between an older warrior and a younger warrior. Perhaps there have been others, but if there were, they seem to have disappeared when the social contract came along.”

    You seem to be under the impression that the social compact is an continuum. It isn’t. It’s new with each nation. Our social compact is for example substantially different from not only contemporaneous compacts but from others throughout history. We don’t have the same laws restricting rights as any other country despite there being some commonalities. Even our closest legal relative, the U.K., has differing standards and applications than we do. What makes our particular social compact unique in history is that it is founded upon the usurpation of tyranny – something no other government founded has ever done. Just because a right previously recognized has faded over time though does not mean the right does not exist, only that societies have changed just as ours is in the process of doing right now in shifting from intolerance to acceptance. The rise and fall of such ethical and philosophical standards is the pendulum of change over time in action. And one man’s upswing is another’s downswing.

    “Second, many of the laws and customs governing marriage have nothing to do with religion, but rather with property and descent.”

    Irrelevant to the point of imposing a religious based definition on pair bonding (the psychological mechanism behind coupling) for all purposes legal still creates a de facto religious test for marriage. “Hetros Only, Homos Not Welcome”. I remember when that standard was applied under another context. “Whites Only, Blacks Not Welcome”. Or to put it in the context of the marriage contract, the miscegenation laws before Loving.

    “Prior to the Christian era, for example, Roman marriage was a purely contractual matter between families. Religion had no role, yet, as far as I know, the Romans had no contractual marriage relationship available for two men.”

    Then you don’t know far enough. Same sex unions were treated just like heterosexual relationships for the purposes of succession, offspring, etc. The ancient Roman view of sexuality was substantially different than ours though. Latin doesn’t even have words for homosexual and heterosexual. The Romans viewed sex in terms of active/dominant/masculine and passive/submissive/feminized. But there is ample evidence of male unions, somewhat less so for female unions, but that is probably due to most of the writings of the time take place in a patriarchal society. Ovid and other writers of the day simply weren’t interested in female sexuality.

    “One might argue that the property and descent considerations were really only limited to the upper class”

    Thankfully we live in an egalitarian society where titles of nobility are not recognized. At least we did until the devolution of our society by creating a bifurcated legal system that caters to the wealthy began under Reagan and was perpetuated by every President and Congress since then, but I digress.

    “The likelihood is that somewhere in the state of nature, there were instances (probably lots of them) of two guys hooking up, and perhaps staying together for life. There was less likelihood, I think, of two women hooking up as an independent unit, because women in most societies didn’t have much choice in the matter of mate selection”

    This is again a misunderstanding of the state of nature as it relates to legalism. There are no societies of scale without a social compact. There are cultures and those cultures may even have some kind of informal rules, but without formal laws, there is no compact and no government as modern legal scholars define government. At the state of nature where things are lawless, women have just as many choices as anyone else in mating absent the tyranny of the strong over the weak.

    “The only way the current system could be said to advance religion is if it limited marriage to the religious and required that all children be indoctrinated in religion from the cradle.”

    A way, surely, but not the only way. This does not address that a religious definition of marriage as a strictly heterosexual endeavor creates a de facto religious test for determining the validity of the otherwise contractual nature of marriage. Other religious traditions, including some Christian ones, seem to have no issue with same sex couples. There is no logical way that forcing a requirement of heterosexuality isn’t advancing the dogma of those creeds which do have an issue with homosexuality over the ones that do not.

    “I just don’t see the Supreme Court buying into an establishment clause argument. [. . .] So, I still think that the only legal arguments that have a chance are the equal protection and federalism arguments, and the federalism argument is probably the stronger of the two.”

    I disagree all things being equal – I have qualms about any Constitutional decision from the Court as currently composed, the Gang of Five is an abomination to justice, but I again digress – although I think you missed the distinction of my language above. I said the 1st argument is strong and I think correct. I didn’t say I thought it was best. And on that, we will just have to disagree as well. I think the 14th arguments (which I’ve run through already on another thread) are much stronger than the Federalism arguments and are in fact the best basis for proceeding even over the 1st-based arguments. I do, however, think all three sets of argument have valid (if arguable) points on the merits in favor of recognizing homosexual rights.

  91. I think it is a mistake not to recognize that there is a perfectly legitimate difference between the legal definition of marriage and the (allegedly “traditional”) social definition of marriage. Married couples have certain legally created advantages over unmarried individuals. The most compelling justifications for these advantages pertain to the State interest of promoting the best interests of children. Nothing here requires or even recommends that the guardians of these children be of different sexes. In fact, ideally it would make sense to eliminate marriage from the equation here altogether and focus instead on the guardianship relation. The question of legal advantages of marriage apart from child-rearing would have to be addressed separately.

  92. Gene,

    Regarding your words: “What makes our particular social compact unique in history is that it is founded upon the usurpation of tyranny” … (from above April 1, 2013 at 11:43 am post)

    The other day I was reading an article and thought of you. When you have a minute or two, please give it a peruse and tell me what you think. (article by Tom Moody, Assoc. Prof, specialization is political philosophy, California State University, San Bernardino)

    http://philosophy.csusb.edu/~tmoody/319%20Rousseau%20Social%20Contract%20minus%20Book%204.htm.html

    “This was Locke’s view too. No political or moral obligation can be inherited. Rousseau does put his finger on a sore spot for contract theories: if each generation is free and uncommitted to obey the state by the contracts entered into by their ancestors, then wouldn’t there have to be a new contract drawn up for every new generation? How plausible is this? Even if my ancestors way back when signed such a contract, it’s quite clear that my father and mother did not, nor have I. Does this mean that none of us has any obligation to obey the state?
    As we saw in Locke, to address this problem contract theorists have had to attempt to devise notions of “tacit” or “implicit” consent. That is, they have had to argue that there are other ways to enter into a contract than explicit consent.
    But Rousseau’s social contract is not a past event. It is an on-going event as we continually consent to the contract at all times that we are citizens. So Rousseau does not have the problem that Locke does of explaining how can the contract oblige us to a government when that contract happened in the past, and was agreed to by our ancestors, not by us.

    … For Locke, the people may only overthrow an established government when it “becomes incompatible with the public good” or violates the rights of citizens. But for Rousseau, the sovereeign people can change the government whenever they wish. That govt. should not be changed except when it acts contrary to the public good is a requirement for Locke, but only a piece of wise advice for Rousseau.”

  93. Blouise,

    I’m playing a bit of catch up from having a bug Th/Fri last week and the time consumed from my weekend doing Easter entertaining to read such a long piece right away, but I’ll try to read it tonight and get back to either tonight or tomorrow.

  94. Gene,

    Forewarned: I’m especially interested in the term “tyranny” and today’s propaganda in interpretation or reinterpretation of historical facts, social compact etc.

  95. Gene H.,

    You do realize, don’t you, that the Supreme Court was not asked to, and did not, grant certiorari on any issue other that equal protection? No party in either case made arguments based on the First Amendment. Only the equal protection and federalism arguments were briefed, and technically, the federalism argument merely supports the equal protection argument in the Windsor case.

    I recognize that marriage in Europe was subject to a near-monopoly run by the Roman Catholic, Orthodox, and (much later) Protestant churches for a very long time. When government took on a role in the administration of marriage, it adopted the practices (or definition, if you will) of those churches with respect to who could get married. As a philosophical matter I agree with you.

    But that still doesn’t mean that it fails the Lemon test. In any event, we aren’t going to get an answer from the Supreme Court, because it wasn’t asked to decide that issue.

  96. Porkchop,

    “You do realize, don’t you, that the Supreme Court was not asked to, and did not, grant certiorari on any issue other that equal protection?”

    You do realize, don’t you, the value of considering arguments in the alternative when examining a legal issue? The more angles one considers a problem from, the greater the understanding of the underlying issues and impacts of said problem. A more complete picture is always better for understanding.

    As I said, strong argument, but not the best.

    As you said, you agree philosophically. Given that philosophy is the basis of law and legal studies, that is immaterial to your acceptance or denial of a de facto test not being the same in net effect as a per se test – people disagree and can do so reasonably. I find it odd you’d disagree in fact when you agree in principle, but to each their own. As an Aristotelian (and a minor Kantian), I prefer to argue from principles. You simply have not convinced me that the 1st/Lemon of reasoning is faulty simply because you do not agree with it in application but agree with it in principle. However, persuasion is the name of the game. That is why the 14th argument set is better than the 1st. It is more persuasive out of the gate and there is less room for quibbling and equivocation.

  97. Gene H.

    The original post is about the legal arguments in the cases that are before the Supreme Court. That’s what I have been addressing. So, no, I don’t recognize any value in a legal case of after-the-fact consideration of arguments that weren’t made about issues that weren’t raised.

    I don’t think you understand between agreeing with a philosophical position and agreeing with a legal position. As a lawyer, I prefer to argue from the law and the facts. I would be delighted as a general matter, and for the particular benefit of my gay friends, if same sex marriage were recognized throughout the United States. That doesn’t mean that I credit (or would make) every legal argument that might occur to me.

    In addition, I’m not sure that I would take it as given that philosophy is the basis of law and legal studies. In fact, my anecdotal experience is the opposite.

    I know that one must be careful about making inferences from silence, but there were some very competent and creative attorneys involved in these two cases. The fact that no one raised the First Amendment argument you propose suggests to me that it is not one that they considered worthwhile.

    You read a great deal more into Lemon than the case itself supports. In Lemon, the government was paying the salaries of parochial school teachers. In these cases, there is no government money going to religious organizations. Thus, there is no requirement for government supervision of a religious organization, which was one of the problems in Lemon. That was the excessive entanglement. Heterosexuals can get married without ever setting foot in a church, paying any money to a church , or even looking at a church.

    Your earlier suggestion that “There is no secular purpose but oppression of a minority in denying homosexual couples the same legal protections and obligations heterosexuals enjoy” speaks more to the equal protection arguemnt than to an establishment clause argument.

  98. Gene H.

    One additional point on excessive entanglement: The government does not have to refer to any religious principle or body to determine whether any two people are allowed to marry.

    Two people show up at the appropriate government office to apply for a marriage license. They fill out a form. One of the questions is gender of the parties. If both check the same box, then the office refuses to issue the license.

    Unjust? Yes.
    Unequal? Yes.
    Involve religious determinations? No.
    Fail the excessive entanglement prong of the Lemon test? No.

  99. Porkchop,

    “So, no, I don’t recognize any value in a legal case of after-the-fact consideration of arguments that weren’t made about issues that weren’t raised. ”

    So I guess you weren’t trained to examine every angle of a case and consider it before going to court. My. How ill prepared. But than again, some people like cookie-cutter law.

    “I don’t think you understand between agreeing with a philosophical position and agreeing with a legal position.”

    And you’d be wrong. What I think you don’t understand is the nature of jurisprudence.

    “As a lawyer, I prefer to argue from the law and the facts.”

    Same here. Occasionally, since this is the court of public opinion and not the bench, we like to discuss alternatives. If you don’t think that’s fruitful, that’s your opinion and you’re entitled to it. That you don’t like the Lemon argument as an alternative is irrelevant to you failing to persuade me that it lacks merit simply because you personally don’t think it fits. That’s ipse dixit reasoning. If you can provide a more persuasive argument that appeals to logic, reason and legal principle? I’m all ears.

    “In addition, I’m not sure that I would take it as given that philosophy is the basis of law and legal studies. In fact, my anecdotal experience is the opposite. ”

    Then clearly you don’t understand the history and evolution of law and legal theory or understand the precise non-value of anecdotal evidence. See, when and where I was in law school, they taught this thing called jurisprudence, the study and theory of law, not just how to go down to the clerk’s office with your i’s dotted and your t’s crossed with your forms straight and your cites Bluebooked and Sheparized. Not just mechanics, we were trained to know where the law comes from and why it is the way it is, not just how it is. I guess some educations are just more well rounded than others.

    “You read a great deal more into Lemon than the case itself supports. In Lemon, the government was paying the salaries of parochial school teachers. In these cases, there is no government money going to religious organizations. Thus, there is no requirement for government supervision of a religious organization, which was one of the problems in Lemon. That was the excessive entanglement.”

    Really. And you don’t see putting the government in the role of enforcing a de facto religious test for marriage as being excessive entanglement? You have a curious definition of entanglement that seems discount enforcement as contact capable of entanglement. Entanglement is the state of being either confused, ensnared, or deeply involved in something. Telling people that they cannot marry based on a religious definition of marriage is deeply involved in the marriages of consenting adults of age of majority and it is so on a non-secular basis. Monetary exchange is not a requirement of the test.

    “Your earlier suggestion that ‘There is no secular purpose but oppression of a minority in denying homosexual couples the same legal protections and obligations heterosexuals enjoy’ speaks more to the equal protection argument than to an establishment clause argument.”

    You know elements of arguments can service multiple arguments. That the one secular purpose you name goes to both arguments does not invalidate that prohibiting homosexual marriage serves no valid secular purpose. There is no specific harm the prohibition prevents. There is no valid secular interest. Your argument is semantic and misses the the point (ignoratio elenchi); a double fallacy logically.

    It seems to me you’re simply upset that I wasn’t persuaded that the Lemon argument is bad.

    I suggest you learn to live with such disappointments especially in light of our agreement that the 14th based arguments are better.

    If you weren’t taught that reasoned minds can disagree, then you have a gap in your training. It doesn’t upset me in the slightest that you disagree. Lawyers do it all the time. Some of the best arguments here come when Mark Esposito (mespo) and I disagree (it doesn’t happen too often, but it does happen). Without disagreement, there would be no profession. The essence of civil justice is dispute resolution. The essence of dispute is disagreement (and specific alleged harm).

    Speaking of which, can you name a specific harm that is created by presenting an alternative argument for laymen to consider? They might run the risk of learning something or considering a problem from a different angle? Such a terrible thing.

  100. “Involve religious determinations? No.”

    When the definition is a de facto religious test in itself? Yes.

    Try again.

    Start with disproving the de facto by definition test argument would be my suggestion.

    Good luck.

  101. Gene H.

    No, I don’t get upset on the internet.

    Read Lemon again:

    “In order to determine whether the government entanglement with religion is excessive, we must examine the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and the religious authority. MR. JUSTICE HARLAN, in a separate opinion in Walz, supra, echoed the classic warning as to “programs, whose very nature is apt to entangle the state in details of administration. . . .” Id. at 397 U. S. 695. Here we find that both statutes foster an impermissible degree of entanglement.”

    403 U.S. 602, 615.

    We both agree, I think, that no one has articulated a “harm” that would flow from allowing same sex marriage. By the same token, though, I don’t think I can articulate the inverse, that is, a “benefit” that accrues to any religious institution from the prohibition. Perhaps you can.

    “Aid” means financial aid in the form of a subsidy. Id. at 621-22.

    “A comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these restrictions [on the use of funds for secular educational purposes] are obeyed and the First Amendment otherwise respected. Unlike a book, a teacher cannot be inspected once so as to determine the extent and intent of his or her personal beliefs and subjective acceptance of the limitations imposed by the First Amendment. These prophylactic contacts will involve excessive and enduring entanglement between state and church. ”

    Id. at 619.

    Lemon simply won’t get you where you want to be. There is no financial aid to any religious organization. The administration of marriage license issue is ministerial — you get one if you are of opposite genders; you don’t if you are of the same gender. It’s a one-step decision tree. No thinking, judgment, doctrinal analysis,or reference to religious authority is required. It doesn’t require comprehensive or continuing state surveillance, unless it is your view that keeping the office open and reading each application form once counts as “surveillance”. “Discriminating” is used in the sense of requiring judgment, not in the sense of treating people differently, so it does not require “discriminating” surveillance, either.

    The fact that the law is congenial to some set of religious beliefs does not make the law an establishment of religion. Lots of laws are congenial to someone’s religious beliefs. Your argument simply proves too much.

  102. Gene H.

    The words “de facto” don’t seem to appear in the Lemon case. What is your legal authority for proposing a “de facto by definition” test as part of your Lemon test argument?

  103. Porkchop,

    Much better.

    “MR. JUSTICE HARLAN, in a separate opinion in Walz, supra, echoed the classic warning as to “programs, whose very nature is apt to entangle the state in details of administration. . . .” Id. at 397 U. S. 695. Here we find that both statutes foster an impermissible degree of entanglement.” 403 U.S. 602, 615.

    The argument is that denial based on a religious definition is precisely administration by proxy. The current religious definition used is conflicting with the governments valid interests in marriage . . . which are inherently non-religious.

    “A comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these restrictions [on the use of funds for secular educational purposes] are obeyed”. Id. at 619.

    “It doesn’t require comprehensive or continuing state surveillance, unless it is your view that keeping the office open and reading each application form once counts as “surveillance”.” – Porkchop

    Precisely. Effective surveillance is accomplished a priori by the marriage license requirement itself and that requirement being based on heterosexual couples only qualify. The problem again is that is a religious definition of marriage and ignores the valid state interests in marriage which are all entirely contractual (other than that family law which addresses the well-being of minors).

    “The administration of marriage license issue is ministerial — you get one if you are of opposite genders; you don’t if you are of the same gender. It’s a one-step decision tree.” – Pc.

    And it is ministerial in the religious sense if the religious definition of marriage is employed as a critical sorting criteria in that it is used as a basis for denial.

    “We both agree, I think, that no one has articulated a “harm” that would flow from allowing same sex marriage. By the same token, though, I don’t think I can articulate the inverse, that is, a ‘benefit’ that accrues to any religious institution from the prohibition. Perhaps you can.” – Pc

    By using a religious definition solely you implicitly endorse that religious view that promulgates discrimination based on such. As dogmas that insist on heterosexuality as a qualification are often/usually interested in an agenda of social division, that provides benefit to their agenda, i.e. political capital in the argument that they have a “true” religion because “even the law man is on their side”. Endorsement, even if passively political, is the equivalent of establishment and that is unconstitutional.

    “The words “de facto” don’t seem to appear in the Lemon case. What is your legal authority for proposing a “de facto by definition” test as part of your Lemon test argument?” – Porkchop

    There is nothing in Lemon about express or implied tests either way, but it is not unfair to argue that this distinction is important and should be a consideration. Just because the argument is new does not mean it is invalid. Novel argumentation is how new law is made through judicial process. But again, I think you miss the point of the argument; what is impermissible by express action is not permissible by implicit action. Applying a religious criteria by using the religious heterosexual only definition of marriage to what is otherwise a valid contractual exercise does an endrun around this principle by allowing an implicitly religious criteria to be determinative. The prohibition uses a religious definition which creates real religious discrimination that serves no valid secular purpose and yet causes the stipulated harms to the homosexual community. It’s de facto endorsement of a particular religious dogma, namely that the relationship of marriage is only for heterosexuals to the exclusion of all others. To shovel it off to coincidence does not negate the net effect since the religious dogma in question is inherently discriminatory.

    The logic is sound.

    See . . . now you’re getting into the spirit of things. Whether the argument prevails in court – as this is an argument in the alternative strictly for discussion purposes – is beside the point. As you noted, this is not the argument before the bar. It’s still a good argument though. You just have to ask “to what end?” Could this argument be advanced at bar? Surely. That does not change that were I plaintiff’s attorney in the instant case that I’d have gone with the 14th Amendment based arguments too. It is the better argument and requires no novel argument (which are always risky, but can yield spectacular results when they go your way – some lawyers live for that kind of thing).

    But where are we having this argument? And why?

    A blog frequented by professionals, but by as many if not more laymen.

    Why? The play is the thing.

    Making people think about the subject in a different way. Provoking thought is one of the goals around here. In fact, the guest bloggers (including myself) have a few editorial dictates we are encouraged to follow and one of them is to encourage debate. We all tend to carry this over in to our commentary as well as practice it in our columns.

    Thanks for playing.

    Your move.

  104. I was watching an episode of Monday Mornings recently and the premis of the show was that a coupel of men married in Mass were visiting family in Ore. One was injured so severely that he would remain in a vegetative state. The husband wanted to pull the plug but the sister claimed since Ore didn’t recognize the maiiiage that she was next of kin . The hospital said she was right . Now Hubby and I were married in Las Vegas tho sadly not by Elvis. WE have never lived in Nev. But our marriage is recognized in all 50 states. Now is there any statute in federal law stating all states must recognize any other states marriages or is it just one of those things assumed? And if there is a federal law does it state that the marriage must be one man and one woman or was it just assumed. My question is based on law before DOMA. If it was just accepted that my marriage in Nev was legal in NC or anyother state then why are gay marriages excluded?

  105. Also Hubby was 57 and I was 49 when we married and tho miracles are created using all kinds of fertility meds for women that age to concieve I am not insane. We had no desire to procreate but to enjoy the companionship and comfort of being with a loved one later in life. Also there were tax advantages and insurance benifits.
    These days most marriages end in divorce and the children are often raised by Moms with extended families . Sometimes with mother and grandma and an aunt or two thrown in all helping to raise the children. Sometimes its the Dad who may share the cost of the household with a brother in law and an out of work comedian. All of the above members of the families aer sometimes hetro sometimes homosexual and sometimes ASEXUAL. Damn who has the time to date? The point is that the children may know if Mom likes a girlfriend or a boyfriend. They in any healthy home don’t know the actual events of the bedrooms. So how does a gay marriage harm me or my marriage. or any children raised in a hetro home or a homo home or a home where the sexual orientation of the various members is just another item in what makes all of our families different. By the way HOW does the sanctity of my marriage affect anyone else. And will they pass a law that tho the marriage is hetro the use of feather dusters invalidates it in 16 states?

  106. Jo,

    In theory, your out of state marriages are valid under the Full Faith & Credit Clause (Article IV, Section 1), however, the jurisprudence since ratification gives greater weight to foreign (as in “from another jurisdiction) judgements than it does to state laws and regulations. It’s not an issue that came up much vis a vis marriage rights until the move to recognize same sex marriages came about. Foreign courts usually just relied on the law of the original jurisdiction for matters like divorce. Technically, some states recognize out of state marriages and some don’t, but I suspect – depending on what happens with cases in front of SCOTUS right now – you’ll see cases based on the FF&C filed in the future.

  107. Blouise,

    Just to draw tighter focus on what you wish to discuss from your link to the annotated “On the Social Contract” by Rousseau, are these the comments of Prof. Moody that you wish to talk about?

    “Surrendering all one’s rights sounds ominous, as dictatorial as Hobbes. It appears to give the state free rein to do what it wishes and, for some readers, has made Rousseau into an apologist for tyranny. Locke’s contract makes us feel safer, because it retains some “inalienable” rights for individuals.

    But the state has free rein to do only what is consistent with the general will, the public interest. And the contract is not between individuals and a state which is somehow “above” them—it is a contract that transfers rights from the individual to the collection of individuals. Locke e.g. says that one way tyranny occurs is when the rulers rule in their own interest rather than the interest of the people. (Plato said the same thing—many of the provisions in the Republic such as common property among the philosopher-kings are designed to remove the possibility of the rulers having interests separate from or opposed to the interests of the people.) Rousseau’s sovereign is the people seen as a collective body—it can have no interests of its own, no interests other than those of the people themselves—the general will. So it cannot act in its own interests contrary to the interests of the people.

    All transfer the same rights, no one retains any rights that no one else has. Rousseau sees protection here in equality. Any burden placed on one is placed on all: so no one would have any interest in oppressing anyone, since that would mean oppressing himself.

    [. . .]

    So if rights were reserved, any time there was a dispute over rights, the body politic would dissolve and citizens would return to the state of nature. Locke in fact agrees with this. He says that if the state and citizens disagree over whether rights have been violated by the state, since there is no one, no institution, to judge between them, the only appeal is “to heaven,” that is, to civil war. Society returns to the state of nature. Unlike Rousseau, Locke did not see this as a defect in his contract.

    How is this problem solved in our nation?

    [. . .]

    Rousseau’s worry is much more over the loss of liberty that comes from personal dependence than it is over state tyranny. He is writing in an age where in France, feudalism is not quite dead, and many people are dependent on the good will of a lord or patron for their livelihoods and prospects. This leaves one open to the arbitrary demands of the lord, whereas law treats everyone equally and predictably.

    If, therefore, one eliminates from the social compact whatever is not essential to it, one will find that it is reducible to the following terms. Each of us places his person and all his power in common under the supreme direction of the general will; and as one we receive each member as an indivisible part of the whole.

    [. . .]

    The body politic is what results when assorted independent individuals agree to be one people and to live together under the same laws. Locke took the same view: that a contract among individuals was necessary to create a body politic and that each member had to freely consent to enter this body.”
    ————–

    BTW, overall, Prof. Moody provides a very interesting analysis. I bookmarked that link for future use and further consideration. Where’d you stumble across that? I’ve got Rousseau’s work(s) already bookmarked from elsewhere on the web in their “raw” form, but that’s one I’d never seen. Google? Bing? Yahoo?

  108. Gene,

    Good … I’m glad you found it intriguing. I stumbled on it through google and thru a combination of key words which I can’t remember for the life of me. It was stuck in the middle of a series of rightwing junk links on the search page and I almost didn’t click on it but saw Moody’s name in the short description and figured it would be worth a peruse. (I’m certain my key words contained the word tyranny which is how I ended up with a list of so many right-wing sites)

    His words in the Forward caught my curiosity “This little treatise is part of a longer work I undertook some time ago without taking stock of my abilities, and have long since abandoned. Of the various selections that could have been drawn from what had been completed, this is the most considerable, and, it appears to me, the one least unworthy of being offered to the public. The rest no longer exists.” … thus, I suspect it is a work that was abandoned or more than likely absorbed into his other works and it’s still just hanging out on the web.

    Moody’s scholarship is firm and I found his analysis intriguing also. The social compact/contract seems to be an area little understood by many on this blog which is also the state I found myself in when I first started reading this blog 5 or so years ago.

    I can see within Moody’s analysis something of what perhaps Jefferson but most assuredly, Madison might have seen and debated and I looked to that with an eye especially on understanding what they might have seen as “tyranny”. As noted in my original post to you, I was spurred towards this matter by your words “What makes our particular social compact unique in history is that it is founded upon the usurpation of tyranny”.

    At any rate, I will await your further study of the material … perhaps a column on the social compact … :mrgreen:

    I’d like to bring Bob into the discussion. Do you think he would find the paper intriguing enough to offer an opinion?

  109. Blouise,

    In re Bob: Probably. It’s right up his alley as Rousseau, Hobbes and Locke are all closely related philosophically to his drinking buddy Kant.

    In re: the Social Compact

    It is a widely misunderstood/unknown subject, especially to laymen. I’ll put it in my “for consideration” list, but it may be a bit before I get to it. I’ve still got a couple of major (non-supplement) installments in the Propaganda Series to do, including one that’s 90% finished and has been sitting for almost two months (I’ve got the dreaded writer’s block on it) and this coming weekend I’ve already got a topic selected. But I think the social compact certainly merits a column of its own. I know this for certain: I’m ready to write a column again after a couple of weeks off (for reasons mostly out of my control as you already know). All work and no play makes Homer go sumthin’ sumthin’. :D

    I think the observation that Moody’s analysis probably mirrors some of the discussions between Madison and Jefferson is a good one too and reflected in “the final product” as it were.

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