Washington Attorney General Sues Florist Who Refused To Provide Flowers For Gay Wedding

250px-Cakeinwhitesatin-1451px-White_and_green_floral_spray_wedding_decorWashington Attorney General Bob Ferguson is suing Barronelle Stutzman, owner of Arlene’s Flowers and Gifts, after she refused to provide flowers for a gay wedding. I have been writing about the tension between free exercise rights and anti-discrimination laws — a subject that I discussed at the conference this week at the Utah Valley University’s Center for Constitutional Studies. This is now an issue that is arising with greater regularity, including conflicts over wedding cakes and other items.

Ferguson is acting under provisions of the state’s Consumer Protection Act that bar discrimination on the basis of sexual orientation and is seeking an injunction requiring the florist to comply with the law. He is also demanding a fine of $2,000 for each violation.

The case involves the refusal to serve customer Robert Ingersoll. Stutzman insists that her religion barred such work. She described the scene: “He [Ingersoll] said he decided to get married and before he got through I grabbed his hand and said, ‘I am sorry. I can’t do your wedding because of my relationship with Jesus Christ.’ We hugged each other and he left, and I assumed it was the end of the story.”

However, the Attorney General says that the standard is clear: “If a business provides a product or service to opposite-sex couples for their weddings, then it must provide same-sex couples the same product or service.” Advocates of such enforcement note that we long ago stopped businesses from refusing to serve people due to their race and that this is merely an alternative form of discrimination.

Recently, a same-sex couple sued over an Oregon bakery’s refusal to make a cake for a same-sex couple.

The question is whether anti-discrimination laws are cutting into free exercise and first amendment rights for religious individuals, particularly those who believe that they are engaged in a form of expression or art in the preparation of flowers or cakes. These types of expressive acts may be distinguishable from other public accommodation cases like hotels or restaurants. Even though the same religious objections can be made by an evangelical Christian hotel owner, the flower and cake makers can claim that they are engaged in a more expressive form of product. It is, in my view, a difficult question because I do not see how anti-discrimination laws could not be used to negate a wide array of expressive activities.

I have long been a critic of the Bob Jones line of cases on tax exemption. I have long held the view that we took the wrong path in dealing with not-for-profit organizations, particularly in such cases as Bob Jones University v. United States, 461 U.S. 574 (1983). We need to re-examine how anti-discrimination laws are encroaching upon religious organizations to give free exercise more breathing space in our society — a position I discussed in a book with other authors.

I find these more recent cases more difficult than the tax exemption cases. I find the analogy to race discrimination in public accommodation to be compelling. I have also been a long supporter of gay rights and same-sex marriage. However, I have serious reservations over the impact on free exercise in an area of core religious beliefs. What do you think?

Source: Seattle Times

257 thoughts on “Washington Attorney General Sues Florist Who Refused To Provide Flowers For Gay Wedding”

  1. mespo,

    Well said. I was letting that issue flounder until he answers the question. However, from what I can tell, the largest influence of natural law (but not the exclusive influence certainly) is the notion of rights as inherent. Back in the day, that was a radical idea when the dominant theory of law was the divine right of kings which relied upon a heavy focus on obligation and fealty to the leige over individual rights.

  2. davidm2575,

    You compare two consenting adults marrying each other to a human marrying an animal? Can an animal consent to marrying a human? Have you dated a lot of dogs in your life?

    I’m a heterosexual woman who has been married to a man for more than forty years. Neither of us can see any way that our marriage–or the marriages of other heterosexuals–would ever be harmed or affected by extending equal marriage rights to gays and lesbians.

  3. David:

    While I believe certain aspects of our law involve notions of Natural Law as classically defined I am under no delusion that this concept defines the whole universe of our laws. In this instance, marriage is a man-made institution — there being no condition in nature requiring it to be so. Thus we may define it as we wish with every incentive to treat everyone fairly as far as we can. There is no reason to exclude groups who do no societal harm from the institution and you have posited no convincing reason why we should. Your rather normative approach that the man-woman affiliation is best for society begs the question about why in an overpopulated world do we have to be concerned about reproduction — as if that is the sine qua non of mutual affiliation which clearly it is not. As I said before you are thrashing in waters outside of your pond and you’re going down for the count.

    1. Mespo –
      I suspect that it will be called off topic or a red herring or whatever label of mockery someone comes up with if I get into detail about Natural Law Theory. Suffice it to say that I have appreciated William Blackstone’s Law Commentaries on this subject. In a nutshell, the idea is that there are indeed yet undiscovered and undefined civil laws that govern the civil affairs of man. The job of civil government is to discover and define these laws in the same way that a scientist discovers and defines the laws of nature. Sometimes science gets only an approximation to the law, like Isaac Newton did with his mechanical laws of physics, but later Albert Einstein supplanted those laws with his theory of relativity. In the same way, as civil governments attempt to discover and define civil laws dealing with morality, sometimes they get it close and sometimes newer versions serve better. Unfortunately, sometimes newer versions make worse laws. For example, the government got things wrong during the time of our revolution, so we invoked the Declaration of Independence to cast off the old government and establish something better based upon better principles. In that Declaration, we appealed to Natural Law and to the idea that Providence would be with us because we were following Natural Law. In fact, our Declaration said it was our DUTY to take this path of war because the existing government departed from Natural Law and had become far too oppressive. In order to secure liberties for all of society, war was deemed to be our right and our duty.

      Our American Civil War was another time in history when own government started getting it wrong with laws, and only after much bloodshed was a correction instituted. For long periods of history, this has been the pattern. From a long term standpoint, wars are somewhat the norm for these corrections, even though many claim that many such wars were unnecessary.

      I do not see marriage as something invented by man. It is my perspective that over a long period of time, the civil laws that govern marriage have been defined and tweaked. If we consider Western Civilization, for example, we find long periods of time where polygamy and concubines were common to those men who could afford it. Divorce also became rampant. In the Talmud, one commentator said that the grounds for divorce could be if a woman burned dinner. In the Hammurabi code of the Persians during the time of Abraham, the wife was required by law to provide another wife to the man if she did not bear him a son. This surely must have been in mind when Sarah gave her maid Hagar to be Abraham’s second wife. By the time of Jesus, marriage and divorce was one of the questions put to him. His answer shocked the culture, because when they were expecting to find which school of thought he followed (the school of Hillel or the school of Shammai). Instead he basically disallowed divorce except for the cause of fornication. When questioned how he could possibly take such a position when the Torah taught divorce, and virtually all believed that divorce law came from God Almighty, he reached back to what was written in the Torah concerning a time BEFORE the Torah was written. He added that the divorce section of the Torah was given only because of their hardened hearts. In the beginning, it was not so, meaning that divorce does not closely conform to natural law except when men’s hearts are so hard that they cannot hear this truth, or in the case of fornication.

      Following that time period, laws in western society became more refined regarding marriage such that the more civilized societies, the ones that prospered, were the ones that defined marriage as being between one man and one woman. Also, the dissolution of marriage required substantial reason. Much of this came about by men reasoning over what Jesus had taught about marriage. Granted, this means many consider it RELIGIOUS reasoning, but I see Jesus as a man like any other man, so why should I discredit what he said just because many made a religion out of following him? Surely what he said ought to carry at least the same amount of weight as any other man. Through a long period of history with the trials and errors of governments, society eventually found its way to our present laws of marriage. These laws have been successful and good for society because they more closely conform to natural law. When we analyze from a rational perspective the biology of male and female, how we come into this world, how we contribute offspring to the next generation, the amount of time and energy it takes to raise and train children properly, and the situation of gender diversity present in man, and the completeness the woman gives to him and that the man affords to the woman, it all taken together makes a lot of sense.

      Now we are in an age of much hedonism, sexual liberation, etc. Now let me be clear. I am not some prude. I was in Amsterdam just last month, and I thought the way they deal with prostitution is better than the way we deal with it over here. Nevertheless, the heightened sexuality of our society has done a lot of harm to marriage. Divorces are easier and easier to get and most young people no longer value marriage at all. It was only in my younger years when it would be a shame for a single woman to have a child out of wedlock. Now it is common place, and I have not one, but several neighbors where the young people do not marry. One girl has children from three or four different fathers (she’s not even sure) and she is trying to choose which man she will live with. When her favorite man gets out of prison, she leaves the one she is currently with to be with him. The poor children are left to figure things out for themselves. I read that 72% of African American children are raised by single mothers. One in eleven of these children end up in prison. I see all this as one big slide toward the abolishment of marriage, and establishing same sex unions as marriage will simply be the final straw that will throw the legal system into complete disarray about marriage. We are basically moving backward toward the Stone Age in this area of knowledge about marriage. I do not think it will be good for society. Furthermore, from a logical standpoint, I do not see any liberty being secured for same sex unions. Like Masha Gessen has warned us, it will be worse for everyone, and the institution of marriage, as we know it, will be abolished.

      You know, when I started writing this, I thought I was going to type just a sentence or two. Look how long it is. I am so sorry. I have really lost interest in this forum because OS asked me to start my answer with a simple yes or no. When I did that, replying no, numerous posts were made that completely overlooked that single No response. One reply even said that I never answered him. I am convinced that my posts are being read very superficially here. I do not know why I continue to post, and I do not know why I made this post so long. I will be leaving in a few weeks, taking my family on a trip around the world, to visit mostly Asia because I took them to Europe last June. It is just part of my children’s education, to help them understand better other cultures, and to see how other societies function. My interest here really is just about gone. No offense, but I think most here have more interest in mocking and scoffing than serious dialogue about serious issues. When responses have nothing new, I get bored. The purpose of my asking about marrying animals was totally lost on everyone. I see no reason to try and explain it. Someone will just make fun of me, and in a way, it is kind of like telling a joke that nobody gets. Sometimes it is better to just walk away.

  4. Gene,
    He says, “I am just applying logic and your questions to your standards and premises.”
    ****************************************
    Taken a course in logic or forensic debate, methinks he has not. Strange indeed, his idea of logic is. Hmmmm…

  5. Can you show a specific damage to yours or any other heterosexual marriage by allowing homosexual couples to enjoy the same privileges (and bear the same responsibilities) that heterosexual enjoy?

    How does recognizing the rights of a minority harm you? Does it break up your marriage? Does it cause you to loose money or property? Does it break your leg?

    Get crackin’.

  6. Actually, no, you didn’t answer the question. That’s a non-specific harm.

    Name a specific harm. You do know what a specific harm is, don’t you? Let me help you with that:

    Specific harm is either an actual defined damage or the substantial risk of an actual defined damage.

    “Thousands of laws” being changed is neither.

    Also, polygamy isn’t illegal because it’s a right, it’s illegal because bigamy is a crime recognized in common law older than this country. Marrying an animal is a legal nullity no matter what website you read. Marriage is a contract and to contract requires valid consent, as animals cannot grant valid consent, they can not contract in any form let alone marry.

    Try again.

  7. More of that famous barnyard product. Your comment about animals was OT. To claim that I…or anyone…dodged it is silly. That was a red herring of the first order. Throwing that out there made you sound as stupid and silly as Rick “man on dog” Santorum. I refuse to be distracted if you try to derail the whole thread. Again.

    You make vague statements about “future generations” and continue to dance all around the question. You nave NOT responded to the question posed repeatedly here. How will your marriage, or anyone else’s be harmed if gay people are allowed the same rights and responsibilities as everyone else? Several of us here have pointed out how gay couples are harmed both psychologically and economically by the despicable homophobic DOMA. So how will hetero couples be harmed? Specifically, rather than some vague reference to “future generations.”

    How are you going to deal with it if one of your kids or grandkids comes out as gay? Not well, I would wager. Suppose they did. Would you not want them to have the same rights as everyone else?

    David, you play pretty fast and loose with the rights of others, while clutching tightly to your own ever crumbling argument that your twisted notion of what is right trumps the immeasurable damage done to others in the name of religious dogma.

  8. David,

    I’ll join for a second…. How is it that you are able to determine what is right or wrong…. Do you walk on water…. Can you change water to wine….. What are your thoughts that Jesus might have been married…. What if Jesus was bi sexual…. Would that change your thought of him…. What if the Jesus that is quote so much was black…. And darker skinned than Obama….. Would that affect your relationship with him…..

  9. David:

    Idont know about you but what 2 consenting adults do or dont do in the privacy of their home is not worth going to war over. It isnt even worth breaking a sweat over.

    The only thing that I can think is that you have been burned by a lesbian who left you for another woman. I cannot think of any other possible reason for you to be going on so long over a simple issue. Either that or you are extremely religious and take the Bible as the unmangled word of God.

    Mardi gras is more a threat to social order and harmony than gay marriage and what about girls gone wild? And nudist colonies, and coeducational dormitories? And women getting the vote? Holy sh*t, there went the country, so that horse already left the barn. Oh and who could forget blacks getting equal rights? Now there was a real disharmonious event, societal breakdown ensued and now we are all living in Gomorra.

    I totally forgot about the bikini and nude beaches. Holy jebis, we live in total chaos and sin, well according to Mullah Omar and Mamud Imanutjob.

  10. As for animals, that is a totally irrelevant question and silly on the face of it. Again, going off on an unrelated tangent. We are talking about human beings. It would help if you stayed on topic.

  11. David, you did NOT answer the question. It is not necessary to go droning on for many paragraphs. (1)Will your marriage be harmed? (2)If so, how?

    The first question can be answered with a simple yes or no. The second can be answered in 25 words or less if you feel there will be personal injury.

    1. OS wrote: “(1)Will your marriage be harmed? (2)If so, how?”
      No.

      I remember answering the question above some time ago.

      The answer to the more general question of how it will affect opposite sex marriage in general is more complicated and the answer is yes. Thousands of laws ultimately will be changed. As I stated before, the harm will be to future generations.

      You dodged my question about marrying animals so I am pretty sure I have understood your question… unless you want to consider the question in the context of people marrying their pets, which some have done. I remember seeing an entire website devoted to helping people marry their pets. Do you want to deny them the rights and the benefits that might procure to their pets if their marriage were recognized by the State? What about polygamists? Should we now accommodate that as well, or do you want to deny the rights and benefits of marriage to polygamists? What if three women want to marry two men, so we have a family structure with five parents in the family? Do you want to deny them their rights and benefits of marriage? Where does the reasoning lead us if marriage is simply a contract between agreeable partners? I really am not being ridiculous. I am just applying logic and your questions to your standards and premises.

  12. AY,
    Point taken, but it is entertaining to see just how far afield he will go to avoid answering the simple question posed to him by several of us. I would love to see him on cross examination in a real hearing, with the judge ordering him to be responsive to the question.

    He raises non-responsiveness to new heights with all that verbal diarrhea.

  13. Feed the gorilla his meat…. You all are spending way to much time playing with the fool….either he does not understand the area in which he professes knowledge or he’s intellectually (challenged) dishonest…..

  14. https://www.youtube.com/watch?v=a8JUwdziLGQ

    Great performance at tap dancing around the question, David. I repeat, how would yours or any other hetero marriage be harmed by a gay couple getting married? You do not have to write a long screed, one or two sentences will do. Simple list, like a grocery list.

    Going off on a tangent about immigration laws is a red herring and you know it. The question was not about immigration, it was about doing away with homophobic laws such as DOMA and giving them the same exact legal standing they would have if they were opposite sex.

    YOU HAVE TAP DANCED ALL AROUND THE DAMN QUESTION, AND WE HAVE YET TO SEE A COHERENT ANSWER!!!!

    1. OS –
      I answered your question. You just don’t like the answer.

      Just in case maybe I am misunderstanding what you are asking, answer the following question which makes just about the same amount of sense and then maybe I can respond in kind.

      How would yours or any other hetero marriage be harmed by animals getting married?

      Concerning the couple who moved here from Israel 15 years ago and are now having difficult legal issues involving their retirement plans:

      Assuming that repealing DOMA and creating a new bill that defines marriage differently creates a loophole in the immigration law to accommodate this couple, then you are right, dealing with DOMA might be a fix for them. However, is this the right way or best way to fix it? Would not fixing immigration laws be another way to fix the problem with this couple? Would not such an approach help more people and not just the same sex couples who come here on work visas and find themselves in a similar situation? Do you seriously think this is a red herring or are you just trying to yank my chain?

  15. Gene & Mespo,
    Been out all day in court and am not particularly surprised the non-debate is still chugging along. David must have been good at playing dodge-ball as a kid, because he is certainly dodging the ultimate question: How will allowing gay couples the right to marry harm his or any other hetero marriage? Just a single reason…or maybe two?

    Where this seems to be bogging down is the unique nature of the marital contract. Gene is right about it being a legally binding contract, and David is correct about its unique nature as a relationship. Because a true relationship is involved, it becomes even more imperative that the government get out of the business of deciding on who may or may not get married. If it is two human beings who have reached the age of legal consent, and are mentally competent to consent, what’s the problem?

    As I was driving to court this morning, there was a story about a couple who have been in a committed and loving relationship for 27 years. The problem comes when one of them retires from her teaching position at the University of Maryland. Despite them being married in a state where the marriage is legal, the professor is here on a green card which allows her to work and pay taxes. She is blocked from obtaining a permanent visa as a married woman due to DOMA. As soon as she retires from her job, the government will force her to leave the country and return to Israel. Her spouse will either have to pull up stakes and move to Israel with the kids, or be separated from her life companion. How in hell does the Defense of Marriage Act defend that marriage? Talk about an oxymoron!

    It is not about marriage, love, commitment or contracts with people like David and his ilk, it’s about the icky sex. The rest is smoke and mirrors.

    Again, David. Enlighten us. In what way will your marriage, or that of any other hetero couple, be damaged if these two professional women are legally married?

    On the other hand, anyone with one eye and half sense ought to be able to see how they are being harmed by the bigotry of homophobes.

    Story here: http://www.npr.org/blogs/itsallpolitics/2013/05/06/181651039/some-democrats-back-same-sex-amendment-to-immigration-bill

    1. OS –
      Concerning this case of the lesbian LGBT activists who immigrated here about 15 years ago from Israel, don’t you think this represents a problem with immigration laws? There is no doubt that our immigration laws are completely broken. Our immigration laws need to be changed to establish a path to citizenship for all law abiding residents. We also need to make it easier for people to immigrate here legally. We don’t need to change marriage laws in order to correct injustices like this one.

  16. Like Mike A. I’ve refrained from getting into this scrum precisely because davidm2575,for all his apparent sincerity and obvious intelligence, has no idea what he is talking about from a legal perspective. It would be like me opining about the software he writes. I might have an idea of what I’m discussing but absolutely no expertise. Gene has done yeoman’s work to educate david, but like that impish student david cites asking for a re-explanation, I have to assume he’s not getting it or playing for the crowd. Not sure with david, but I’ve got an idea it’s the former.

  17. “You seem to be confusing the idea of government having a compelling interest to regulate marriage and define it appropriately for that purpose, and the need for government to have a compelling governmental interest in order to infringe upon the unalienable rights of a citizen.”

    No, we aren’t talking about two different things. You simply have no clue as to where your rights come from. They are inherent, not grants from government. We don’t have an authoritarian form of government by the terms of the Constitution and it is only under an authoritarian form of government that rights are grants from authority and not inherent like they are in the natural law tradition upon which our government was founded. You also apparently don’t understand the 9th Amendment – “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    Whether you like it or not, the right to same sex marriage exists at the state of nature.

    You can also think marriage isn’t a contract all you like, David, but the definition of a contract is an agreement between two (or more) parties that creates in each party a duty to do or not do something for consideration. In the case of marriage vows, that consideration is a promise exchanged for a promise. The nature of the contract also creates a specific remedy for breach which in the case of marriage is divorce (or annulment depending upon the circumstances).

    “The compelling interest of government in marriage is not about whether couples reproduce, but rather it is about the relationships formed through marriage and the fact that marriage is a public institution that affects all of society.”

    Simply wrong . . . and you almost know why . . .

    “It is about the rights, duties, and obligations that are created when individuals enter into the marriage relationship.”

    And that relationship is contractual. The only compelling governmental interest in the relationship applies to specific legal benefits such a relationship creates (like spousal testimonial immunity, tax benefits, intestate devolution, etc.) and the rights and obligations for remedy in breach.

    In arguing tradition, to be clear, you are arguing a religious definition of marriage specifically in the Christian mode. The government cannot promote one religion over another by the terms of the Establishment Clause of the 1st Amendment and must provide for rights to be recognized and laws to be applied equally to citizens via the Equal Protection Clause of the 14th Amendment.

    You simply don’t know what you are talking about legally and this is a law blog foremost and first.

    While your argumentum ad ignorantiam is persistent, it is still nonetheless legally wrong and inherently irrational.

    Try again.

    How about trying this . . .

    Can you show a specific damage to yours or any other heterosexual marriage by allowing homosexual couples to enjoy the same privileges (and bear the same responsibilities) that heterosexual enjoy?

    Can you?

    I think not, or else you’d quit dodging the question which is key to whether or not government has a compelling interest in denying homosexuals equal rights and answer that simple question.

    1. Gene H. –
      Thank you so much for acknowledging the principle of natural law. Other than me, you are the first person in this forum to acknowledge natural law as an important legal principle for discussing human rights. Although you couched the concept as a criticism, claiming that I don’t understand it, and for some strange reason you erroneously think that I argue for an authoritarian form of government, the acknowledgement that you agree with this legal concept gives me a glimmer of hope that perhaps we might come to some common understanding. Prior to this most recent post of yours, I was coming to the conclusion that most everyone in this forum rejects natural law theory and thinks that rights are granted to individuals by government.

      You make the assertion that the right to same sex marriage exists at the state of nature. The way this statement is framed has the logical problem of begging the question. Your statement incorporates a premise that leads to your conclusion because it has long been understood that the right to marriage exists in nature. If two types of relationships are defined by the same words, the inclination in rhetoric is to think of them as the same and treat them in the same way. Basically, this methodology of discussion attempts to win the argument by the words used rather than through reason and the underlying principles and concepts.

      My perspective is that using the term marriage for a same sex union creates a misnomer and complicates the discussion. Obviously, if you use the same term for two types of unions, same sex and opposite sex, and your argument is to equate the two, then you are winning your argument from the terms used rather than from the concepts involved.

      An inherent assumption you have is that same sex coupling is exactly the same as opposite sex coupling, so you have no problem calling it marriage. My assumption is that same sex coupling is not exactly the same as opposite sex coupling. The primary distinction between the two is: 1) the presence of gender diversity in opposite sex coupling and lack thereof in same sex coupling, and 2) the presence of normal reproduction through sexual intercourse of the couple in opposite sex coupling and the lack thereof in same sex coupling. While the objection has been raised about the fact that sometimes opposite sex couples are sterile or become sterile in old age, or that artificial methods of reproduction and also adoption exist for the same sex union, there is a long tradition of marriage being a vehicle whereby young people couple in order to contribute their genes to the next generation through creating children and a family. The exceptions are not sufficient to ignore the primary motivation of nature for couples to reproduce through natural means. Furthermore, the presence of gender diversity alone is enough to consider the two types of union to be different.

      If the discussion is to continue on logical grounds, I think it prudent to establish terms that do not automatically treat the two unions as the same because that is part of the issue being discussed. I propose that we use the term same sex union instead of same sex marriage. The question then becomes, is same sex union the same thing as marriage? Your statement would then become that that right to same sex union exists at the state of nature.

      Does the right to same sex union exist at the state of nature? It might be argued by some that the right to sexual interactions within a same sex union does not exist in nature because nature created the sexual drive for the purpose of reproduction and that purpose does not exist in that context. Nevertheless, we can set such arguments aside for the moment and simply agree that two people of the same sex certainly have the natural right to contract in a lifetime partnership with each other. Let us also assume for the moment that privacy rights trump the arguments for establishing civil laws to prohibit what might be deemed to be inherent unnatural sexual relations or activities. To simplify the discussion and not get off track, let us simply ignore the sexual behavior part of the same sex union and address the question of whether the fundamental right to enter into a lifetime committed relationship with another person of the same sex exists. The answer would be yes, it does. Nevertheless, because the relationship is not identical to opposite sex unions traditionally known as marriage, the civil laws necessary in such, and the duties, rights and obligations created by that union, should be defined differently. There are some commonalities, but also significant distinctions, so civil laws and civil institutions need to treat them separately.

      Considering your arguments that marriage is simply a contract and nothing more, I already quoted previously from Maynard v. Hill, Adams v. Palmer, Maguire v. Maguire, Ditson v. Ditson, and Donaldson et. al. v. State of Montana (which was decided just months ago) that marriage is more than a contract. For your convenience, I quote again the following legal ruling that I had previously posted: “Although commonly referred to as a contractual relationship, the obligation of marriage is more than merely contractual. As the Supreme Court has explained, “when the contract to marry is executed by the marriage, a relation between the parties is created which they cannot change. Other contracts may be modified, restricted, or enlarged, or entirely released upon the consent of the parties. Not so with marriage. The relation once formed, the law steps in and holds the parties to various obligations and liabilities.” Maynard, 125 U.S. at 210-11, 8 S. Ct. at 729. “When the contracting parties have entered into the married state, they have not so much entered into a contract as into a new relation, the rights, duties and obligations of which rest, not upon their agreement, but upon the general law of the State, statutory or common, which defines and prescribes those rights, duties and obligations. They are of law, not of contract.” Adams, 51 Me. at 483. As we have noted, “it is to the interest of the state that [marriage] be permanent.” Franklin, 40 Mont. at 350, 106 P. at 354.” It seems to me that every lawyer in this blog dodges addressing these comments directly and just go on repeating the mantra that marriage is a contract and nothing more.

      Concerning your question about damage to my specific marriage or other heterosexual marriage, I already answered you but you don’t like the answer. I even gave an empirical example with Masha Gessen, an LGBT activist for 30 years who after entering into gay marriage in Massachusetts found inadequacy of gay marriage to work for her and now advocates for the abolishment of the institution of marriage. The problem is that your question is similar to the proverbial question, “When did you stop beating your wife”? How does a person answer that question? The question assumes that I have been beating my wife, so any answer I give the person is unsatisfactory because a premise within the question is faulty. I might say, “I have never beat my wife,” but the person is not satisfied because he continues to assume that I have and so he keeps repeating the question and assumes that I am dishonest or unable to understand his question. The problem is similar to an animal rights activist asking, “Can you show me specific damage to you and your marriage that is caused by not granting animals the same rights and privileges that you enjoy?” It simply is the wrong question to be asking. It is a trick of rhetoric that sophists use to appear to be on the right side of an issue rather than convincingly ask a question or make an argument that leads to increased knowledge and understanding.

      The issue here is for civil laws to reflect natural law accurately. I feel like someone trying to explain the laws of gravity but someone objects to my reasoning because he found a place on earth where it appears that vehicles roll uphill. Civil laws must begin by treating same sex unions differently from opposite sex unions because of the inherent differences between the two (namely, Gender Diversity and Reproduction). Unlike marriage, same sex union laws probably should be based upon contract law. If the courts come to give nearly exactly the same rights and benefits, like California has with its domestic partnership laws which essentially give the same rights as marriage, so be it. I think ultimately, as time and history tests the laws, there will be important differences established that work to benefit society as a whole.

  18. “Insanity: doing the same thing over and over again and expecting different results.” – Albert Einstein

  19. Gene H:

    “I would like someone to explain the rationale for making same sex marriage a foundational civil right. What is the reasoning?”

    ***************************
    Marriage not a fundamental civil right? If the government can’t prevent the action how can they dictate who undertakes the action and with whom? Seems an exercise more in the realm of logic than legal policy, but then I’m often accused of being too simplistic.

    David is quite the persistent antagonist. What’s that definition Einstein had about insanity?

    1. mespo –
      The idea is that when someone enters into a marriage relationship, certain obligations, duties, and rights are established. When laws accurately define these laws, it facilitates harmony and the common good. Government began to incentivize marriage with certain benefits because the lawmakers deemed that if couples entered into marriage and assumed its legal responsibilities, it was better for society as a whole. They wanted boys to be men and live up to their responsibility to get a stable job and provide for their family and raise children in a family unit with both parents present rather than just shacking up with a girl and then leaving her and her children to shack up with someone else. Now, some same sex couples want those government benefits also to apply to them. The benefits never applied to long term roommates, but I guess the presence of sex in the relationship makes the union similar to marriage to some people. In any case, some of the grievances are very legitimate, but some are not. Our civil laws certainly need to change, but in my opinion, we should not destroy marriage and the laws associated with it in the process. Legal structures should be developed that apply to same sex unions and appropriately identify what, if any, governmental interests actually apply toward regulating that union. If the laws are not defined properly, societal chaos and possibly even war will result. History has taught us this.

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