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.

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

  1. 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.

  2. 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?

  3. 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?

  4. 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.

  5. 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?

  6. 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.

  7. “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.

  8. 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.

  9. 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.

  10. 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.

  11. 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.

  12. 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.

  13. Gene,

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

  14. 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.

  15. 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.”

  16. 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.

  17. 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.

  18. 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.

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