Patterico's Pontifications

4/3/2009

Iowa Supremes Legalize Gay Marriage

Filed under: General — Patterico @ 7:55 am



Another state supreme court imposes gay marriage by fiat:

The Iowa Supreme Court this morning unanimously upheld gays’ right to marry.

“The Iowa statute limiting civil marriage to a union between a man and a woman violates the equal protection clause of the Iowa Constitution,” the justices said in a summary of their decision.

The court rules that gay marriage would be legal in three weeks, starting April 24.

How long before the chief justice sits for a slobbering interview about her Courage in the Des Moines Register?

117 Responses to “Iowa Supremes Legalize Gay Marriage”

  1. Another astonishingly incoherent decision.

    SPQR (72771e)

  2. The decision was unanimous. The state Supreme Court website has been slashdotted all morning, but the Des Moines Register has it here.

    aphrael (9e8ccd)

  3. No doubt there will be more court stuff and a very soon constitutional amendment to defeat these idiot Iowa SC “Justices.”

    John Hitchcock (fb941d)

  4. Is it possible that these decisions are still part of Karl Rove’s dastardly plans? Bad court decisions open the door to amendments, propositions and referenda to put this back in the people’s hands, thus guaranteeing conservative voter turnout.

    carlitos (24c940)

  5. I just figured eye-cha-wawa, the state that produced the famous Walter O’Reilly, would have more cents than that supreme pizza decision.

    .

    .

    CHOPPERS!

    John Hitchcock (fb941d)

  6. carlitos,

    Big time bad news: Iowa doesn’t have a state initiative/referendum process. A ballot measure overturning this court would have to come from the (Dem) Legislature first. What do you think the chances of that happening are?

    Brad S (9f6740)

  7. Both of my parents are from Iowa so I traveled there often as a kid. They’re consistently behind the rest of the country by a year or two on every style, trend, etc. Is it any wonder they’re celebrating April Fool’s Day two days late?

    Xrlq (928baa)

  8. This is garbage, there’s a reason whyheterosexual marriage has a priviledged position in oursociety,
    it’s not about sex,or companionship or benefits, it’s about the propagation of the species through the birth and raising of children, for the last 44 years, since Griswold, we’ve been eroding that line. It’s yet another sign that the partisans of such a philosophy, have someone who one can’t consider to be a ‘good man’.

    narciso (996c34)

  9. Who cares? It’s de minimis. Just how many gay couples, men or women, do you think you’ll find in Iowa and how old do you think they will be?

    For crying out loud, this is not going to rend the fabric of society. At most, it will help a few old lesbians avoid probate.

    nk (c2b047)

  10. And with this “victory”, the gay-marriage movement will suffer another dozen state constitutional amendments, as the argument that the courts won’t do this seems increasingly silly.

    Note to would-be do-gooders: Using the courts to bypass the legislature is generally viewed by people as cheating, and is resisted even by people who agree with you.

    Kevin Murphy (0b2493)

  11. nk, I agree, this is not something that we need to invest our time and efforts into. I think the decision is wrong, but if the Obamamessiah continues his planning, it won’t matter worth a tinker’s dam anyway.

    GM Roper (85dcd7)

  12. That should read “tinkers damn” meaning a curse from someone who curses so often, it is a meaningless gesture and therefor not worth anything.

    GM Roper (85dcd7)

  13. If I have a burst water pipe and a cracked grey-water pipe, I’ll turn off the water and fix the grey-water pipe first. Then replace the burst pipe. One gets the cellar wet and stinky, the other only gets the cellar wet.

    John Hitchcock (fb941d)

  14. The Des Moines Register said:

    “Today’s decision makes Iowa the first Midwestern state, and the fourth in the country, to allow same-sex marriages.”

    No, it’s only the third in the country, after Massachusetts and Connecticut.

    Official Internet Data Office (0b92b2)

  15. The opinion that gay (civil) marriage is a good idea — which I believe it is — is no basis for holding that there is no “rational basis” for limiting civil marriage to opposite sex couples.

    Insanity. Yet again a court takes an issue that was left to the political branches (leg., exec.) and says, Oh no, this was already decided when the Constitution was written. You don’t even get to vote about it.

    Mitch (890cbf)

  16. If ‘fiat’ is how we describe interpretations (either the process or the result) of laws and state and federal constitutions that we disagree with, then, sure, the Iowa Supreme Court imposed gay marriage by fiat.

    Funny, in a sad way, how both sides use this term (along with judicial usurption, overriding the people’s wishes, etc., etc) when a court rules against them. And funny, also in a sad way, that those on the right railing against this ruling don’t acknowledge how they benefited when equal protection was cited – and just like in today’s ruling in a way our founders never would have contemplated – as the basis for shutting down the 2000 Florida vote.

    To me, it’s pretty simple. The drafters of the Iowa Constitution didn’t take this issue into account and as a result left the door wide open for the Iowa courts to rule this way. If you all want to blame someone, blame the guys who did (from one perspective) a half-a***d job.

    steve sturm (369bc6)

  17. Kevin, I wish I could agree that even folks who disagree generally find this approach distasteful. Unfortunately, I’m one of the few folks I know who are pro-gay-civil-marriage yet are outraged by the imposition of that policy result by judicial ipse dixit based on an amendment meant to protect against racial discrimination.

    Mitch (890cbf)

  18. Mitch: they did not say there was no rational basis. They used intermediate scrutiny, a higher level of review than one which requires rational basis/

    aphrael (9e8ccd)

  19. OIDC: that’s unclear, actually. California recognized gay marriages between May and November of last year. It doesn’t currently recognize gay marriage, but if you are counting states which have recognized gay marriage …

    aphrael (9e8ccd)

  20. Nonsense, steve, the drafters of the Iowa constitution did not envision the Iowa Supreme Court inventing a suspect class for sexual orientation.

    SPQR (72771e)

  21. Steve, the federal and state EPCs largely were put in place in the late 1800s for the purpose of preventing racial discrimination by government. You seem to believe that because those EPCs don’t specifically say, “This is limited to matters of ethnicity,” THEREFORE it’s perfectly fair game for a court to decide that “equal protection” applies to other classifications besides ethnicity, including sexual orientation. With respect, that is an absurd distortion of the intent of the EPCs. At the time of EPCs enactment, sodomy was a felony throughout the English-speaking world. If the drafters had meant it to apply to sexual orientation or gender generally, they knew how to have said so, e.g., the Nineteenth Amendment: Why was that even needed if the federal EPC already guaranteed “equal protection” along GENDER lines?

    Mitch (890cbf)

  22. I disagree with the entire premise of “vote is good, a court deciding is bad”. That’s how we set up our system.

    It’s worked out pretty good for me, so far. I’m sitting behind a computer, having this conversation, I will have lunch soon, and some lady is outside cleaning my window.

    nk (c2b047)

  23. Aph, thanks — so they took the Connecticut route? Obviously I disagree with that no less strenuously, but it’s more as to choice-of-scrutiny than as to whether the judges like the law.

    What it really boils down to is that, even though the EPC is silent as to these and so, so many other “distinctions” in public matters, particularly in social policy, too many judges are determined to overturn a law if they really, really don’t like it, using EPC as a convenient excuse: “I don’t think the reasons given are good enough, so it’s unconstitutional.” That’s a legislative judgment, not a legal one.

    Mitch (890cbf)

  24. Comment by SPQR — 4/3/2009 @ 9:22 am

    While the Iowa Constitution-writers most definitely did not consider homosexual anything when writing their constitution, John Adams made a very pertinent statement years before Iowa was even thought of.

    We have no government armed with power capable of contending with human passions unbridled by morality and religion. Avarice, ambition, revenge or gallantry would break the strongest cords of our Constitution as a whale goes through a net. Our Constitution is designed only for a moral and religious people. It is wholly inadequate for any other.

    And I fully agree with John Adams.

    John Hitchcock (fb941d)

  25. Dictators always claim courage and end up imposing death on those who might disagree. The Judges aren’t there yet, but they’re on their way.

    Ken Hahn (67a201)

  26. Our Constitution is designed only for a moral and religious people. It is wholly inadequate for any other.

    And I fully agree with John Adams.

    Comment by John Hitchcock — 4/3/2009 @ 9:32 am

    So, Mosaic, Talmudic, or Sharia law?

    nk (c2b047)

  27. nk, an amusing strawman since John Adams followed none of those you list.

    SPQR (72771e)

  28. nk, one rule of reading historical documents is to use historical context. Your strawman question violated historical context.

    John Hitchcock (fb941d)

  29. href=”null” target=”_blank”>For crying out loud, this is not going to rend the fabric of society. At most, it will help a few old lesbians avoid probate.

    Comment by nk — 4/3/2009 @ 9:04 am

    You’re wrong. Other state courts will use this as precedent in their own rulings on the issue.

    It won’t rend society overnight — but we will pay the price as the years go by, just like no-fault divorce creates a host of problems, legal and social, for women and men.

    Richard Romano (3d310e)

  30. Mitch and SPQR: it’s not that the drafters intended it to apply or that they didn’t intend for it to apply, my point is their language left the door open to interpretation in the way it was just done.

    And, pardon me if I got this wrong, but I thought looking at intent was relevant only in matters where the text of the relevant statute was unclear or contradictory, and that when the language was clear, you went with the text.

    steve sturm (369bc6)

  31. This will be exactly the same as California. The voters will change the constitution.

    Steven Den Beste (99cfa1)

  32. Our constitutions are hard-code, not living and breathing organisms. Any time something is not perfectly clear today, determine the intent and context of when the constitutions were written. Any other reading of the constitutions is a travesty and a miscarriage. There is only one constitutional method of altering the original intent. And that method is written within the constitution.

    Activist judges violate constitutions on a near-daily basis.

    John Hitchcock (fb941d)

  33. Steve,

    One difference between Bush v. Gore and the current decision is that the election could not be resolved by the legislature – the vote had already occurred. In Iowa, however, the legislature had already addressed an area that as you say was not addressed by the constitution. Things that have already occurred in the past and need sorting out, then a court is best suited to handle it; when planning for the future, those laws are best left to our elected representatives (operating within the confines of the constitution of course.)

    Mike S (d3f5fd)

  34. But, conservative activist justices are cool with you and your Creationist sensibilities, right, John.

    timb (f6a410)

  35. No, it’s not unclear. Today, there are three states which sanction gay marriage, and Iowa is the third state. The story ran in the Iowa newspaper today, not between May and November of last year, so it should say third, not fourth. The reporter is supplying a misleading answer to readers who might be wondering, “How many other states recognize gay marriage right now?” Usually, the copy desk will correct an error like this, unless, of course, they believe it’s a good thing to exaggerate the number of states that support gay marriage.

    Official Internet Data Office (0b92b2)

  36. brad S: Does Iowa have a recall process for Supreme Court Judges? Because if there is no ballot petition process, I see this mess going that particular route.

    I really don’t get the politics of this. Support for gay marriage droped 9 points in California from 2000 (when Prop 22 passed with 62% of the vote) to 2008 (when Prop 8 only got 52 or 53%). The long term trendline will establish this issue democratically IF people can wait a few years. Push the issue now, and there will be blowback, and lots of it.

    Sean P (e57269)

  37. Two data points don’t establish a trendline.

    Official Internet Data Office (0b92b2)

  38. timb, try Constitutionalist

    John Hitchcock (fb941d)

  39. I disagree with the entire premise of “vote is good, a court deciding is bad”. That’s how we set up our system.

    I understand what you’re getting at, nk. But I’ll side with Scalia on this one: legislating an issue is good, court deciding an issue is bad.

    Steverino (69d941)

  40. But, conservative activist justices

    Exactly what is a conservative activist justice?

    Activist justices are generally considered to be fabricating rights where there is no Constitutional text to support the position. What would be a “conservative activist”?

    Steverino (69d941)

  41. That which cannot be won within the Legislative process must be imposed via the Courts. It is a simple concept. They know better than the rest of the rubes.

    JD (d9e595)

  42. Sean,

    The only recourse conservatives have is having the Legislature, in the last few weeks of the session, ram through a Constitutional Amendment to send to the voters for ratification. The judges (or anyone else) cannot be recalled.

    Unless you’re in the mood for banging the drums against this decision from now until 11/2/10.

    Brad S (9f6740)

  43. steverino – a conservative activist judge is one that actually reads and follows the Constitution.

    JD (d9e595)

  44. “Exactly what is a conservative activist justice?”

    Some folks (not me) say it’s the SCOTUS that agreed with Heller on the 2nd Amendment. Which reminds me: If the gay/lesbian rights people had any sense of who could help them, and if they were truly in the mood to kill the culture wars once and for all, they’d try to enlist the support of gun rights activists.

    Of course, the gay/lesbian rights people are more interested in having an easily identifiable enemy than that….

    Brad S (9f6740)

  45. Boy, Brad, you really don’t know how to read the Constitution, do you? The 2nd Amendment is most definitely an individual right to bear arms. A historical context would not permit any other reading of that. Examine the Federalist Papers on that. There are no homosexual rights enumerated in the Constitution.

    John Hitchcock (fb941d)

  46. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    aphrael (e0cdc9)

  47. aphrael – I am sure that you will be able to show us the place in the Iowa Constitution that provides for the Right of marriage.

    JD (d9e595)

  48. “…how many gay couples, men or women, do you think you’ll find in Iowa…it will help a few old lesbians avoid probate.”
    Comment by nk — 4/3/2009 @ 9:04 am

    How many communities in Iowa have colleges?
    That’s about the spread of this decision, don’t you think?
    And, those ladies could avoid probate if they hired a competent estate attorney.

    AD - RtR/OS (efb8b3)

  49. JD: aha! that’s a trap for the unwary conservative.

    The *US* Supreme Court has said, numerous times, that marriage is a fundamental right. See, for examples, Loving v Virginia and Zablocki v Redhail.

    aphrael (e0cdc9)

  50. The words of John Adams still hold true.

    John Hitchcock (fb941d)

  51. aphrael, yes the court has said that marriage is a fundamental right. But it has not said that the fundamental right of marriage includes these expanded definitions of “marriage” like homosexual marriage, polygamy etc.

    SPQR (72771e)

  52. JD: I don’t believe the Iowa ruling wasn’t that the state constitution gave gays the right, their decision was that the equal protection clause in the constitution prevented the state from keeping gays from marrying. not quite the same thing.

    steve sturm (369bc6)

  53. The *US* Supreme Court has said, numerous times, that marriage is a fundamental right.

    Yes, that’s true. And gays have the same rights to marry as heterosexuals do: they may marry any person of the opposite sex who is (a)of the proper age (b) not currently married and (c) nonconsanguinous.

    Steverino (69d941)

  54. And how does the US Supreme Court look at what constitutes a marriage, aphrael?

    JD (d9e595)

  55. JD, SPQR: the US Supreme Court has not ruled on the issue. Surely you aren’t suggesting that the state of Iowa – or any other state – should wait for the Supreme Court to consider the issue before it rules?

    Steve Sturm: you’re correct. The IA Supreme Court basically started with “we already know that marriage is a fundamental right; the question is, can the state deny that right to gay couples?”

    Steverino: the law equally prevents the rich man and the poor man from sleeping under the bridge at night?

    aphrael (e0cdc9)

  56. The rich man can sleep under the bridge if it is on his property and he owns it.

    AD - RtR/OS (efb8b3)

  57. I’m not sure how this fits into the whole elected vs. appointed narrative, but IA Supreme Court Justices are elected. (Not conventionally, but the people of IA voted that decision in too.) Moreover the Chief Justice is a Republican appointee who’s up for re-election in 2010, so it’s not like this decision was made with the understanding that her job would be secure for the next eight years.

    SEK (072055)

  58. I think you will see a popular movement in IA to force the legislature to put forward an amendment to the Constitution. If the legislature fails to do so, those that oppose the amendment will be at extreme risk in 2010. It could end up flipping the IA legis. back to the GOP. Harkin is fortunate that he just won re-election and won’t be caught up in a wedge issue in 2010.

    Shipwreckedcrew (7f73f0)

  59. Mike S : SCOTUS acted in Bush v. Gore because the Florida legislature could act. Under the Florida Conbstitution, the Florida Supreme Court was not the final arbiter of Florida Election Law. That duty fell to the Florida legislature – both houses sitting as one.

    The legislature, with Republicans in control of both houses, was ready to summon the Florida Justices to appear before them and explain by what authority they had that allowed them to act in this matter.

    The prospect of all seven members of the Florida Supreme Court having to take the “Fifth” would hve severely damaged our judicial system.

    SCOTUS had hoped that the initial 9-0 decision and the mention of ‘by what authority” ( see “Quo Warranto” in English Common Law) they had acted would be sufficient for the Florida Supreme Court to quit trying to steal the election for Al Gore.

    Longwalker (4e0dda)

  60. At some point, Americans are going to have to restrict what is allowed (and not allowed) to be decided by some simpleton with a law degree.

    james conrad (6bb6e6)

  61. Since 1851 Iowa has law has said “marriage is a civil contract, requiring the consent of the parties capable of entering into other contracts, except as herein otherwise declared.”

    Only in 1998 did the legislature get around to “herein declaring” that “only a marriage between a man and a woman is valid.”

    Iowa judges are NOT elected. A “nominating commission” conducts interviews and sends three names to the governor, who must pick from those three. Judges, including Supreme Court Justices, are subject to retention vote every fourth year, but there is no campaigning by the judges.

    Iowa does NOT have a ballot initiative process. The state constitution can be amended only by majority vote of each chamber of the legislature in one General Assembly, followed by a general election, followed by another majority vote in each chamber in another General Assembly, followed by a majority vote of the people. It is a long process, but it has happened 46 times.

    MB (a97c58)

  62. A ballot measure overturning this court would have to come from the (Dem) Legislature first. What do you think the chances of that happening are?

    Does the Dem legislative leadership in Iowa drink the queer Kool-Aid?

    Note to would-be do-gooders: Using the courts to bypass the legislature is generally viewed by people as cheating, and is resisted even by people who agree with you.

    This is true even if the ruling was legally correct.

    But it has not said that the fundamental right of marriage includes these expanded definitions of “marriage” like homosexual marriage, polygamy etc.

    Reynolds v. the United States upheld a ban on polygamy back in 1879.

    Of course, Iowa cann decide on the legitimacy of anti-bigamy laws on the basis of state constitutional jurisprudence.

    Michael Ejercito (7c44bf)

  63. Since 1851 Iowa has law has said “marriage is a civil contract, requiring the consent of the parties capable of entering into other contracts, except as herein otherwise declared.”

    Only in 1998 did the legislature get around to “herein declaring” that “only a marriage between a man and a woman is valid.”

    This would imply that same-sex “marriage” was legal there from 1851 to 1998.

    Michael Ejercito (7c44bf)

  64. Under the Florida Conbstitution, the Florida Supreme Court was not the final arbiter of Florida Election Law. That duty fell to the Florida legislature – both houses sitting as one.

    That’s a misreading of both Bush v. Gore and the Florida Constitution.

    The premise in Bush v. Gore was something known as the “Independent State Legislature Doctrine” – ie., that, notwithstanding the normal order of statutory interpretation in a state, the US Constitution delegates certain powers to the state legislatures exclusively, and the state courts are extremely limited in the way they can interpret state legislation related to those delegated powers.

    aphrael (e0cdc9)

  65. Steverino: the law equally prevents the rich man and the poor man from sleeping under the bridge at night

    Are you arguing the law isn’t applied equally in this case? Can a heterosexual man marry another man? Would a gay man be stopped from marrying a woman?

    As I have said before, if people don’t like the law, the place to change it is in the legislatures.

    Steverino (69d941)

  66. I found another critique of the ruling.

    “I am having a hard time caring one way or the other if men marry men and women marry women. Really. It just doesn’t matter that much to me. Frankly, it isn’t my place to tell other people how they should live their lives. I wish the left would give me the same consideration, but that just isn’t how they roll.

    Here is what does bug the hell out of me about this ruling. Deep in the opinion is this gem…

    (1) “[E]qual protection can only be defined by the standards of each generation.” (p. 16)

    The “living, breathing document”, once again, crawls from its grave. When judges tell us that the constitution – national or state – is open to changing interpretation, they are telling us the document means exactly nothing. They are telling us that there are no universal truths or objective facts in the documents. Everything is open to interpretation by jurists. If they tell us that, “by standards of this generation”, free speech doesn’t mean political speech, that is what the living breathing constitution has evolved to mean. Deal with it. The words don’t necessarily mean what the words say, you see. They tell us, the words mean what they “interpret” them to mean. In other words, the document isn’t worth the parchment it is written on.”

    Michael Ejercito (7c44bf)

  67. If words can mean anything, they have no meaning at all.

    AD - RtR/OS (efb8b3)

  68. An anti-gay Iowa judge can use this ruling to justify a statutory ban on same-sex “marriage”, by finding that “the standards of the generation” no longer include sexual orientation to be covered by equal protection.

    Michael Ejercito (7c44bf)

  69. Let’s take it to the absolute extreme: The godforsaken sodomites will fry in hell forever. Or lose eternal life. Whatever.

    Why should we, their fellow human beings, do the Devil’s work while they still live?

    nk (c2b047)

  70. Why should we, their fellow human beings, do the Devil’s work while they still live?

    I’m not getting your point, nk. Exactly what is the Devil’s work that we, their fellow human beings, are doing?

    I’m not too keen on a court saying something that has always meant X suddenly means Y just because the court says so.

    Steverino (69d941)

  71. If we believe that their mortal lives are the only lives they will ever have, because of their sinful ways, why should we deprive them of even that? As long as they do not hurt other people. Let them enjoy the little they have now.

    nk (c2b047)

  72. When I go before Christ for Judgment, I will not be able to lift my eyes to meet His. And not because I’m gay.

    nk (c2b047)

  73. nk – why should we deprive them of even that? As long as they do not hurt other people. Let them enjoy the little they have now.

    Because this isn’t about homosexuality or marriage.
    This is about the government regulating what the citizenry believes. There are no physical actions that will be different for homosexuals or heterosexuals because of this ruling, which immediately makes it entirely different than any actual civil rights issue.

    This is using the judiciary to legislate the recognition of a belief, because the legislation would not pass.

    Apogee (f4320c)

  74. There are no physical actions that will be different for homosexuals or heterosexuals because of this ruling

    But there are all sorts of legal differences under Iowa law. This isn’t like California, where there are domestic partnerships which give gay couples almost all of the legal rights that married couples do; Iowa has no equivalent.

    aphrael (e0cdc9)

  75. Aphrael – Iowa has no equivalent.

    And that’s wrong. I don’t know if you remember the other discussions regarding this issue, but I am absolutely in favor of homosexual marriage.

    Quite frankly, I don’t see how the legal differences would not be subject to challenge on legal grounds regarding discrimination.

    But apparently that wasn’t important.

    What was important, however, was using the government to regulate belief. That is what I have a problem with. I see far bigger problems if this practice continues. Problems for everybody, including gays.

    Apogee (f4320c)

  76. me 4:09 – I am absolutely in favor of homosexual marriage.

    I should amend that. Government should not be in the business of regulating marriage.
    Period.

    To allow it the power to grant marriage concedes the power to refuse marriage. I do not believe the government should be allowed that power. Social contracts such as visitation rights, inheritance, co-habitation between consenting adults should be handled in a contractual manner.

    Apogee (f4320c)

  77. <>

    If we believe that their mortal lives are the only lives they will ever have, because of their sinful ways, why should we deprive them of even that? As long as they do not hurt other people. Let them enjoy the little they have now.

    <>

    If you can persuade the Iowa legislature of this thesis, go right ahead. What does transcend the individual’s mortality in a secular world is the state. Ours was founded on a constitution that has a definite, originally intended meaning. When under the conceit of a ‘living constitution,’ others are harmed because justices pervert that meaning; and then not only do perverts* “marry,” something which harms the common understanding of the logical meaning of marriage as the cultural ratification of a biological fact, but the state is perverted and becomes more gravely harmed as such rulings gather in precedence.

    Many state legislatures have already granted civil unions to homosexuals. This keeps the relationship in the more ephemeral, civil sphere. I suspect that this is “enjoyment” enough to hinder any more perversion of the age-long, universal understanding, divine or secular, of what marriage truly is.

    —–
    * strong word, but homosexuality is an ethical perversion of the communal aspect of marriage as the institution in which fleeting sexual liaisons become enduring families, even if the community has decided that it is not a “harmful” crime.

    Noesis Noeseos (7c067a)

  78. ethical perversion of the communal aspect of marriage as the institution in which fleeting sexual liaisons become enduring families

    I don’t follow. My husband and I have formed an enduring family, which is recognized as such by both his extended family and my extended family. So how have we violated the communal aspect of an institution in which fleeting sexual liaisons become enduring families?

    aphrael (e0cdc9)

  79. the cultural ratification of a biological fact

    I’m not sure where you’re getting that from, but it’s not a biology textbook. The most socially monogamous animals on earth are birds, but even they’re not sexually monogamous (meaning they pair-bond but engage in extra-pair copulation). Among mammals the rate of social monogamy is south of ten percent, whereas among primates the rate of social and sexual monogamy is south of five percent. Moreover, the numbers indicate scientists should expand the category of social monogamy to include same-sex pair-bonds, as those are far more common among primates. (Note, these same-sex pairs are typically socially, not sexually monogamous, so it would be a mistake to call them homosexual.) All of which is only to say, if you think the law should only codify biological fact, life-long commitments to members of the opposite sex doesn’t qualify.

    SEK (072055)

  80. I don’t follow. My husband and I have formed an enduring family, which is recognized as such by both his extended family and my extended family. So how have we violated the communal aspect of an institution in which fleeting sexual liaisons become enduring families?

    Your scenario remains idiosyncratic–you are obscure: just how do you define this “husband” and distinguish “him” from this “wife?”–and confined to your own immediate relatives. You cannot universalize your putative circumstance, which cannot have existed for more than a few years (who knows how long it may persist?) and compare it with the collected experience of humanity throughout the generations and over the whole of the inhabited earth. These latter are the spans under which ethical norms develop and operate. In no case can your circumstance serve as an archetype for the begetting and nurturing of human families.

    But, again, perhaps you in all the generations have altered the course nature and invented something new under the sun. If so, persuade the legislature to sanction it. Do not tamper with the Constitution.

    Noesis Noeseos (7c067a)

  81. If so, persuade the legislature to sanction it. Do not tamper with the Constitution [which is given by God and only … Oh. My Gosh … the Supreme Court can say what it says.]

    nk (c2b047)

  82. “All of which is only to say, if you think the law should only codify biological fact, life-long commitments to members of the opposite sex doesn’t qualify.”

    SEK – I didn’t see the above argument in the comment at #77, but the strawman and Animal Kingdom episode make nice reading. Thanks.

    daleyrocks (5d22c0)

  83. Re comment 78:

    The biological fact is that in sexual reproduction the male sperm fertilizes the female ovum. Birds and such, since they devise nothing but act without reflection upon their immediate instincts, are not cultural beings; only humans can be. A flock, a gaggle of apes, or, for that matter, a mob, may constitute a society; but only under the rule of law does a culture exist. I do not care to live as a bird or an ape or a thug.

    An institution is a norm. Certainly you are aware that humans, having free will, may corrupt institutions. Why, even constitutions may be corrupted, but woe unto those who corrupt their laws; that way lies the ruin of nations.

    No, I do not think the law should or even ever attempts to codify merely biological phenomena. Law is for the life of reason.

    Noesis Noeseos (7c067a)

  84. Michael E., that inference is what led to the ’98 legislation — passed by a then-solidly Rep. legislature and signed by a Dem. governor.

    The Dems control both houses of the legislature and the governorship. Yet curiously, a bill to strike the opposite-sex limitation on marriage died, without so much as a committee vote, only a few weeks ago.

    mb (62e6fe)

  85. Why, even constitutions may be corrupted, but woe unto those who corrupt their laws; that way lies the ruin of nations.

    Like we did with the 13th Amendment?

    Law is for the life of reason.

    Ok. We all agree. Now just take your pill and lie down.

    Comment by Noesis Noeseos — 4/3/2009 @ 6:56 pm

    nk (c2b047)

  86. Και δεν εχεις καμεια νοωση, Νοωσηε.

    nk (c2b047)

  87. Why, there is a Thersites in every camp. Must you devolve into the personal, nk? Or is that your particular perversion? Do try, just for the sake of novelty, to rise above your πάθημα.

    Noesis Noeseos (7c067a)

  88. Πως αικανες την οχεια sto πάθημα;

    nk (c2b047)

  89. How difficult is it to allow the legislature to do the legislature’s job. If the courts insist on implementing legislation contrary to the will of the people, then this issue will just continue to percolate, resentments will continue to build, and people will lose further faith in the system. It will ultimately become a fire-breathing issue like abortion has become, because the people will have been excluded from the process. Ultimately, this kind of judicial hoo-ha will likely set back what is more than likely to happen naturally, as society is going towards this issue already. Having it jammed down our throats by judicial fiat is not the way to resolve this.

    JD (850d33)

  90. Just so others know what’s going on here, after calling me sick of mind, nk makes references in Greek to the injury of male homosexuality. No doubt his is well practiced in this.

    He should at least take the care to use the proper accents and diacritics; another perversion of his, no doubt.

    I doubt that Patterico appreciates this kind of discourse.

    Noesis Noeseos (7c067a)

  91. I didn’t see the above argument in the comment at #77

    How’d you miss it, what with my quoting of it? How about I quote it again, only a little more:

    the common understanding of the logical meaning of marriage as the cultural ratification of a biological fact

    I left the first part off because it was wordy and redundant, but there it is.

    the strawman and Animal Kingdom episode make nice reading. Thanks.

    I’m not seeing how refuting the idea that heterosexual marriage is a “biological fact” by saying, “No, it isn’t, here are some biological facts” qualifies as a straw man.

    SEK (072055)

  92. Nature has ordered the sexual act to one thing and one thing only: the procreation of children. This is why even “fleeting sexual liaisons become enduring families” among humans. Unless man deliberately obstructs nature’s clearly intended end (which is pretty much the whole aim of the Modern Project–that project which underlies these surface conflicts we call collectively the “culture war”) children must eventually result, and human beings have found the nuclear family to be the soundest arrangement for the raising and nurturing of human children. Hence, even though men may wish to bed as many women as they want (or vice versa), society naturally puts pressure on the two parents to “accept responsibility” and contribute to their progeny’s welfare, which ideally includes the ongoing physical presence and influence of both parents. It’s a matter of nature–a law of nature, if you will, that isn’t abrogated simply because man possesses the ability to disobey it.

    Obviously, in the case of homosexuals, the end of nature cannot in any measure be achieved. No children can possibly result from a homosexual union, nor can the bond that naturally develops between a man and a woman due to the procreative act be duplicated. Indeed, simply as a matter of engineering any kindergartner can understand, the male sexual organ is not designed for any other orifice than the female sexual organ, nor is it designed for any other purpose than procreation (save excretion), as the expulsion of semen which always accompanies male orgasm clearly shows. Nor, even on the principles of the Darwinists, can homosexual behavior be defended. Only the most obtuse thinker of that stripe would be so bold as to claim that it somehow improves the survivability of the species for the species not to procreate. (And if he should claim instead that it is not the entire species, but only these few oddballs who have been weeded out by random mutation as unfit procreators, why in the world should we think that, if that’s the case, they are somehow nevertheless fit parents for other peoples’ children–that they should be able to “marry” and adopt like the fittest can?)

    Homosexuality is clearly at odds with nature, and it is the philosophical incoherence which results from attempts to legitimize it–the violation of right reason–that disturbs opponents of “gay marriage” more than anything. “Marriage” means a particular thing, for a particular reason. If you want to allow civil unions among habitual sodomites, that’s one thing, but to call them “marriages” is akin to calling homosexual adoptive parents “natural parents.” Such a thing is simply a logical impossibility, and the Orwellian attempt to force people to accept it can and must eventually come to a very bad and bloody end.

    danebramage (700c93)

  93. “the common understanding of the logical meaning of marriage as the cultural ratification of a biological fact

    I left the first part off because it was wordy and redundant, but there it is.”

    SEK – Can you point out where the lifelong marriage part of the biological fact was in comment #77 that you added in your response and quote that as well please? Your comprehension is way off tonight.

    daleyrocks (5d22c0)

  94. Just so others know what’s going on here, after calling me sick of mind, nk makes references in Greek to the injury of male homosexuality. No doubt his is well practiced in this.

    He should at least take the care to use the proper accents and diacritics; another perversion of his, no doubt.

    I doubt that Patterico appreciates this kind of discourse.

    Comment by Noesis Noeseos — 4/3/2009 @ 7:48 pm

    Greek is a subtle language. But unless improperly transliterated, there’s a big difference between “understanding of mind
    ” and “sickness of mind”. In transliteration, I could be forgiven for translating “Noesis Noeseos” as “sickness of mind”. Because I do know Greek and the proper transliteration is “Gnosis Gnosios” you dumb little ____.

    nk (c2b047)

  95. Admittedly, that comment borders on nonsense, so I did infer quite a bit but 1) I think we’re all better off it we admit that those clauses don’t quite stack and 2) he or she did seem to be purporting that marriage as currently defined was “the cultural ratification of a biological fact.” If I’m off, so be it, and I’ll rescind my objection. But given #83, I’ll admit that I have no clue what Noesis Noeseos is going on about, what with his gaggle of non-geese.

    SEK (072055)

  96. Which side is the science on in this debate?

    JD (850d33)

  97. Friend danebramage,

    I am inclined to agree with the burden of your argument, but I recommend avoiding such personifications as “Nature has ordered.” They will seem quasi-theological, and it is not theists whom we must convince. Our task is to persuade secular (i.e., economic and “high-culture” conservatives) and moderates.

    Also, nature, although it has patterns and we should emphasize these, is unconscious. “Society” too is indefinite; any association of whatever kind, the best and the worst, is a society.

    But culture is both customary human ethical practice and the more conscious deliberations of the law.

    We can begin our arguments in support of marriage with the rational understanding of nature, but we cannot end there.

    Now, to be fair to the homophiles, there was once an ethical, or at least a societal, sanction for (male) homosexuality. This occurred in the time of those wily Greeks. In the citizen army, an older man would pair with a youth; he would protect him and teach him soldiering as they stood against the foe. Aristotle approved of these arrangements, as long as they did not interfere with the duty of a man to take a wife and to replenish the citizenry. Nobody even in Alcibiades’ Athens imagined that the males themselves could marry each other.

    That stage of culture, however, has been long surpassed. We live in vast nations, not intimate cities, and we have experienced the moral refinements that came with Christianity. The insights of Augustine and Aquinas, Luther and Calvin, have changed the ethical landscape, even among those who renounce a belief in God: Marx is not Leucippus, Freud is not Epicurus.

    I understand your desire to make a “biological” argument against homosexual “marriage,” and this is a first step, but I suggest that the argument cannot pause at that level. The problem with empirical observations is that they are too abundant. One can pick and choose when trying to use them to make inferences about ethical human behavior. As Freud said, causes are overdetermined. Although some of our foes will soon tire of hearing it, we must emphasize that for us humans, reason is the essence of what we are, not the contingencies of nature.

    Noesis Noeseos (7c067a)

  98. “so I did infer quite a bit”

    SEK – That was really my only point.

    daleyrocks (5d22c0)

  99. Greek is a subtle language. But unless improperly transliterated, there’s a big difference between “understanding of mind
    ” and “sickness of mind”. In transliteration, I could be forgiven for translating “Noesis Noeseos” as “sickness of mind”. Because I do know Greek and the proper transliteration is “Gnosis Gnosios”

    You don’t recongnize the passage from Aristotles’ Metaphysics?

    The sickness is your καμείἀ, from the verb κάμνω. You you mean merely that I am laboring?

    The ὀχεία is very nasty; you must know this. Why do you hate me?

    Noesis Noeseos (7c067a)

  100. Fair enough, daley, but given #97, I think you can cut me a little slack. I mean–and I say this as an expert in needlessly complex verbiage–that’s some awesomely unnecessary complexity. With me, you always know what I mean, because I’m at least trying to communicate. I don’t lord unearned profundity over people by writing: “[t]he insights of Augustine and Aquinas, Luther and Calvin, have changed the ethical landscape, even among those who renounce a belief in God: Marx is not Leucippus, Freud is not Epicurus.”

    I’ve read all but one of them (Leucippus, who I only know through what others have written about him), and some of them in the original Latin, and I still have no clue what he’s going on about. Do you?

    SEK (072055)

  101. Which side is the science on in this debate?

    JD, science isn’t on any side, it just is what it is. Hell, my dissertation refutes ideas critical to “The Narrative” of the New Deal, not because I wanted it to, obviously, but because the facts are what the facts are. I’m not about to bend them to my liking just to win an argument on the internet.

    SEK (072055)

  102. 100

    It grieves me that you find my posts needlessly verbose, but the subject is complex and requires more than just a casual scribble.

    Surely you can summon the effort and the charity to parse my dense prose. But then, it’s been 45 years since I wrote essays in college; no doubt pedagogy has slackened. Justice certainly has.

    Noesis Noeseos (7c067a)

  103. I simply asked a question, SEK.

    JD (850d33)

  104. 100

    I know this much about Leucippus and why I thought his writings pertained to the discussion: he was an atomist, but he was not an economic determinist. For him there was no conflict between mind and atoms, whereas for Marx, ideas were illusory superstructures run by economic (which he claims are material) causes. For Leucippus there was still the interiority of self-awareness; for Marx “man is nothing but an ensemble of his social relationships.”

    If you can correct my understanding, I would receive enlightenment. It’s difficult to know when posting a single comment just how much detail to include.

    Noesis Noeseos (7c067a)

  105. To cut to the the chase, SEK (95) and to nurture your taste for good sense, a gaggle is a group. Imagine the apes in the “society” argument I was criticizing. They run about on the ground; they climb the trees. Maybe, like some others animals, they only mate at a certain season during the year. Or maybe they fuck at random whenever they get the urge. They do not deliberate on the method. Get the picture? Who fucks whom is seemingly random (except, I guess, males only fuck females; if male A tried to fuck male B, either B would try to kill A or B would be his bitch forever, as in human prisons). Soon enough little apes are born. How are these raised? Correct me if I am wrong, but the females all get together and raise the apelings. The phenomenon “responsibility” never appears on the scene.

    Do they ever think about what they are doing? Do they declare or inscribe laws about the proper way to go about all this fucking and suckling? No, they just do it. Maybe this works for them; after all, they are apes. Would it work for you–not you and your honey on some isolated island, but you and your wife in a civilized city or nation, under its laws?

    Am I still too obscure?

    Noesis Noeseos (7c067a)

  106. Gay marriage is kind of dorky. Outside of whatever civil rights blah blah blah it just looks awkward when I see it on the tv. Sort of like the contrived solemnity of your confirmation and then like how you have to stand and not say nothing while they give you some award at work that you know is lame and you know everyone else knows is lame and then the part that’s kind of a cross between winning the Dating Game and a fabulous reprise of the I Have A Dream speech what was so popular in… I think it was the 60s.

    happyfeet (20bcab)

  107. SEK, et. al. 106 is one reason why I persist in my style and my labor, as ponderous as you find them. Look upon my prose as you would a heavy counterbalance to a dead-lead weight.

    Noesis Noeseos (7c067a)

  108. Jesus, it’s not a fiat, it’s the judicial branch. Aren’t you supposed to be a lawyer?

    TEH NARRATIVE (863676)

  109. Why do you hate me?

    Comment by Noesis Noeseos — 4/3/2009 @ 9:08 pm

    I don’t hate you, Noesis Noeseos. It’s the language barrier.

    nk (fb48f8)

  110. Yet curiously, a bill to strike the opposite-sex limitation on marriage died, without so much as a committee vote, only a few weeks ago.

    What is the cite for this?

    Michael Ejercito (7c44bf)

  111. nk #9 -Nailed it. Solid.

    but Apogee #76 tells it like it should be.

    Everybody homo or hetero or other should get a contract. If you are a guy and you wanna partnership with some big ripped oiled up hunka guy with leather and porno tats then go for it.

    If you want to get married then do it in any church that will perform the ceremony (or not as is your taste).

    EdWood (48d3df)

  112. The Iowa Supreme Court this morning unanimously upheld gays’ right to marry.

    Oh, brother.

    Touchy feely, touchy feely, touchy feely.

    Such beautiful, sentimental, lovely, wonderful, benevolent, warm-hearted justices!

    However, that kindness and caring also needs to be extended to polygamists next, particularly if they’re a part of the Islamic religion. After all, when it comes to groups or individuals not associated with Western tradition (and its corresponding imperialism, militarism, racism, hegemony, greed, capitalism, etc, etc), you can never be too accomodating.

    Gay marriage is kind of dorky.

    Nothing more cringe inducing than when a guy calls another guy his “husband.”

    Everybody homo or hetero or other should get a contract.

    And for all the bisexuals in society, they really deserve special recognition too. So a legal category that allows a guy to have both a wife and husband, and a woman to have both a husband and wife should be considered and enacted.

    Mark (411533)

  113. #112 Mark (quoting happyfeet at #106):

    Gay marriage is kind of dorky.

    My favoritist comment of the whole thread.

    Sums up the whole deal quite nicely.

    EW1(SG) (e27928)

  114. We all need to stand up and be counted among those who are offended that England allowed that 10-year-old girl to get divorced from a muslim. I mean, how dare she even assume she has the right to a divorce?

    John Hitchcock (fb941d)

  115. A great decision. We have this thing called a Judicial Branch to prevent unpopular minorities from being victimized by insecure majorities. I’m glad we don’t live under Mobocracy.

    jack (81d857)

  116. Jack apparently felt the need to drop by and prove his ignorance.

    JD (1653ac)

  117. […] goes on. Read the whole thing. This is the problem I have with people who argue that cases like this one are somehow wrong or less than legitimate: You have to go through some […]

    Fun With Conservative “Jurisprudence” | Lean Left (ad7214)


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