Patterico's Pontifications

7/1/2014

Another Federal Judge Strikes Down a Ban on Gay Marriage

Filed under: General — Patterico @ 9:54 pm

This time in Kentucky, and the judge is snotty about it:

These arguments are not those of serious people. Though it seems almost unnecessary to explain, here are the reasons why. Even assuming the state has a legitimate interest in promoting procreation, the Court fails to see, and Defendant never explains, how the exclusion of same-sex couples from marriage has any effect whatsoever on procreation among heterosexual spouses. Excluding same-sex couples from marriage does not change the number of heterosexual couples who choose to get married, the number who choose to have children, or the number of children they have…

The state’s attempts to connect the exclusion of same-sex couples from marriage to its interest in economic stability and in “ensuring humanity’s continued existence” are at best illogical and even bewildering.

As I have said many times, I believe gay people should be allowed to get married. But I also disagree with resolving the issue through the courts — and I don’t believe in being snide or dismissive about the views of people who disagree with me. Here’s one federal judge who is perfectly happy with being snide and dismissive.

Add it to the pile.

Once again, we are relying on judges instead of relying on society changing its views — something that is happening anyway. I wish judges would get out of the way and let society handle its own issues.

184 Responses to “Another Federal Judge Strikes Down a Ban on Gay Marriage”

  1. Ding.

    Patterico (9c670f)

  2. My primary complaint would be that he did not address the point that same-sex couples could have children, from former marriages, adoption, or various forms of medical (or amateur) assistance.

    You’re right in that these are the kind of lawsuits that judges should not have to deal with; given the elemental cowardice of the legislatures they’re going to have to, in the interest of justice.

    Sad.

    htom (412a17)

  3. I believe gay people should be allowed to get married.

    And it no longer should be deemed a case of being snotty (and I really mean it—this no longer is a bit of pure flippancy on my part) to say that John Q Public should therefore be able to have two or more wives.

    Mark (9771dc)

  4. it’s kind of weird to me

    not in a bad way… but still, it’s kooky

    how conservatives find it so shocking to find civil rights secured and advanced through the courts

    when that sort of thing is a tradition in america what’s been here as long as marriage

    and we should conserve it i think

    happyfeet (8ce051)

  5. it’s kind of weird to me

    not in a bad way… but still, it’s kooky

    how conservatives find it so shocking to find civil rights secured and advanced through the courts

    when that sort of thing is a tradition in america what’s been here as long as marriage

    and we should conserve it i think

    I believe the courts are there to strike down unconstitutional laws, and should boldly do so — far more often than they do, frankly.

    But I find nothing in the Constitution that speaks to gay marriage (or abortion, or a host of other provisions that agenda-driven leftists have “discovered” lurking in the pages of the Constitution over the years).

    Who can forget Senator Trumbull’s glorious 1871 disquisition on the rights of gays to get married? And when Thaddeus Stevens of Pennsylvania included those penumbras and emanations to, and I quote, “protect the rights of womenfolk to have late-term abortions” . . . well, that was a constitutional moment for the ages.

    But, sarcasm aside, you’re right: making up shit and pretending it’s in the Constitution is an age-old game in this country — not quite as old as marriage, perhaps, but certainly a practice going back to John Marshall.

    Patterico (9c670f)

  6. But, sarcasm aside, you’re right: making up shit and pretending it’s in the Constitution is an age-old game in this country — not quite as old as marriage, perhaps, but certainly a practice going back to John Marshall.

    Meanwhile, the Smart Set will go to great lengths to tell you that the Second Amendment doesn’t really say what you think it says.

    JVW (feb406)

  7. But, sarcasm aside, you’re right: making up shit and pretending it’s in the Constitution is an age-old game in this country — not quite as old as marriage, perhaps, but certainly a practice going back to John Marshall.

    Who really should have recused himself, since he was the one who appointed Marbury in the first place, in his capacity as Secretary of State.

    Milhouse (b95258)

  8. equal protection speaks to gay marriage is what these people say i think Mr. P

    and me i believe them

    and we all saw how this has come to pass

    we’re here cause of the congress in its wisdom passed a law

    and Bill Clinton signed it

    what said marriage is only for these ones not those ones

    which raised the logical question

    does this law apply to everyone equally?

    and what the burgeoning case law suggests is that

    no, DOMA violated the equal protection clause and ergo and therefore all the little baby DOMA’s do too

    It is what it is.

    but what’s even more very not america

    and what is altogether obscene

    is when conservatives ask the majority to vote on the rights of an incredibly tiny wee small minority

    and they see the results and they say yes.

    This.

    This is good. This is wise.

    and perhaps it is

    but it’s not America

    in America the majority don’t vote on the rights of the minority.

    And praise Jesus.

    happyfeet (8ce051)

  9. in America the majority don’t vote on the rights of the minority.

    Sure they do. All the time. Every day.

    As someone once said: democracy is four wolves and a sheep voting on what’s for dinner.

    I have already mocked the idea that anyone in 1868 (or any time near then) was thinking “gay marriage” when they passed the 14th amendment. Either you believe laws (and the Constitution) mean what they meant when written, or you believe that any old person can come along and change their meaning when “evolving standards of decency” among the elite require it. I believe in original understanding, but plenty (you, apparently, included) believe the words can mean whatever you want them to.

    Patterico (9c670f)

  10. the next time the Republicans try and foist a Meghan’s coward daddy or a weirdo willard on the nation in the guise of leadership, perhaps on the same ballot we should ask Americans yay or nay on gay marriagings

    happyfeet (8ce051)

  11. Who really should have recused himself, since he was the one who appointed Marbury in the first place, in his capacity as Secretary of State.

    And failed to deliver the appointment — an omission characteristic of that lazy blowhard.

    I guess he figured it was all copasetic since he ruled against Marbury in the end anyway.

    Patterico (9c670f)

  12. it’s kind of weird to me

    I find it amusing, happyfeet, that you in other posts, in other threads, have smirked about the concept of polgamy, which, if anything, adheres to human nature — of even more people — more closely than or at least as closely as same-sex marriage does. I won’t say anything about your frequently using the word “gay” in a disparaging manner. Okay, I will.

    As for the latter, you may claim that you use “gay” to be smark-alecky, but I have a hunch that if you’re typical of most people — certainly of the average male — you at least unconsciously go “yeech” when dealing with male homosexuality. Even the super liberal Hollywood crowd, for example, will not say such-and-such an actor is rumored to be gay the same way they’d, for example, wonder whether it was true that actor A or B had a billion-dollar inheritance or was a Rhodes Scholar in his younger years.

    Mark (9771dc)

  13. I have already mocked the idea that anyone in 1868 (or any time near then) was thinking “gay marriage” when they passed the 14th amendment.

    there’s lots and oodles and squaddles of things what have been touched on by this clause what people in the 19th century never dreamed of

    not even in their dreams

    happyfeet (8ce051)

  14. there’s lots and oodles and squaddles of things what have been touched on by this clause what people in the 19th century never dreamed of

    not even in their dreams

    Yes, I know. You applaud that; I don’t. That’s the difference.

    Patterico (9c670f)

  15. these courts are rescuing Republicans from themselves

    happyfeet (8ce051)

  16. I wish judges would get out of the way and let society handle its own issues.

    I’ve discussed this at some length with gay friends.

    My position is that marriage equality will had a strong foundation only if the change comes from the legislature or the people, that the court actions (especially the arranged default judgements) will never ever settle it in people’s minds. See Roe.

    Their position is that it is a civil rights issue, and why should they wait for rights to be granted that are INHERENTLY theirs, as are all rights, That they have been denied for a long time is not a basis for further denial, and that’s what the courts are for.

    Clearly, I don’t oppose the notion, but do quibble a great deal about the tactics. Roe was a mistake on so many levels and I really hate seeing people repeat mistakes.

    Kevin M (b357ee)

  17. had have

    Kevin M (b357ee)

  18. It is worth noting that the Kentucky judge applied only equal-protection and only a rational basis test and still found the ban wanting. When it gets to the Supremes, if the traditional marriage side cannot offer better arguments, they probably lose worse than Kennedy & the liberals. They could even lose 9-0 if the stars line up bad enough and no one wants another Roe.

    Kevin M (b357ee)

  19. Even assuming the state has a legitimate interest in promoting procreation,

    Interesting formulation. What is this guy, 150 years old and forgot what it was like to be in high school?

    The procreating part promotes itself. There’s no need for the state to advertise the activity on Superbowl Sunday, as if no one knows about it.

    It used to be that states had an interest not in promoting procreation, but in limiting and channeling the urge.

    I a sooo glad we’ve shrunk he entitlement state to the point where we no longer have to worry about such things.

    the Court fails to see…

    Obviously.

    and Defendant never explains, how the exclusion of same-sex couples from marriage has any effect whatsoever on procreation…

    I doesn’t. You’ll have just as any people scrogging like goats as ever.

    …among heterosexual spouses.

    Just get out of the habit of using the word “spouse.”

    Excluding same-sex couples from marriage does not change the number of heterosexual couples who choose to get married, the number who choose to have children, or the number of children they have…

    Ahh,now you’re talking.

    It does.It does.

    How dense do you have to be to figure out that by eliminating marriage as a prerequisite to having kids, that has an effect on he number of couples who will wait to get married to have kids? And, eventually, ever get married.

    Steve57 (c4c6a6)

  20. It’s getting to the point that I want the word marriage stripped from the language unless it is a ceremony performed by a priest/minister/rabbi/imam/etc for a couple that has previously entered into a civil-union contract before a magistrate.
    A civil-union contract: Sort of strips all the romance from it.

    askeptic (8ecc78)

  21. htom wrote:

    You’re right in that these are the kind of lawsuits that judges should not have to deal with; given the elemental cowardice of the legislatures they’re going to have to, in the interest of justice.

    The elemental cowardice of the legislatures? The legislatures haven’t been cowards on this at all, but have spoken, in the form of the laws that they have passed. In several states, the people have gone further, and made the restriction of legal marriage to normal relationships part of their constitutions.

    The Dana who grew up in Kentucky (3e4784)

  22. I had to sadly laugh a little as I watched Patterico and Mr. Feet duke it out (though Mr. Feet was overusing his “Archie and Mehitabel” style free verse oddness, I think) upthread. Their differences of opinion really do showcase the battle at the core of our nation, in a microcosm. The true Culture War we aren’t talking about, that is taking place right now, everywhere.

    Patterico (and yours truly, for what that is worth, though I am not a lawyer or “Constitutional Scholar,” the latter of which seeming to be quite flexible in definition) think that the Constitution should be strictly interpreted, and not at the whim of culture fashion. If changes are necessary, then it is time for everyone to agree, figuratively, via amendments to that Constitution. And even that approach makes mistakes from time to time; no system is perfect.

    (Right about now, folks are gearing up to start assembling a ragtag army of straw men…try to hear me out).

    What we have now are cultural whims being imposed on people by judges. Mr. Feet loves it now, because those decisions agree with his world views and current political fashion-sense. The ghost of Robespierre would urgently point out that the rules approved of when they benefit one’s world view can also be used to toss that same world view away. There is a strange narcissism among progressives and the Left that not following the law is okay so long as the results are pleasing (there are a number of cultural quotations about that, involving omelettes and eggs, and even one about Stalin knowing when to halt his advances during WWII). But what is happening now is all according to cultural fashion. And those fashions can change, and rather quickly. Precedents, once set, are dangerous.

    The Democrats love the “nuclear option” now. They won’t later. As I have tiresomely repeated, the best rule or law is one you do not mind in the hands of your bitterest enemies. Does anyone think that the MSM and Left (though I repeat myself) would be silent about the NSA and IRS’s excesses….with a Republican in the Oval Office? Many folks seem to be okay with hypocrisy, and that works fine on network news, but not so much in the legal structure of our nation.

    Look at Patterico’s very relevant comments about “emanations from the pneumbra” of the Constitution. Douglas used that phrase in Griswold v. Connecticut to justify a result he wished to see (and if you haven’t read about Griswold v. Connecticut, it is worth your time). Now me, I love privacy. But I am a strict constructionist when it comes to the Constitution. And claiming that the Constitution could have squishy definitions to support my wishes, even if I like those wishes and want to seem them come to pass, is…dangerous.

    As several people have pointed out, if SSM is an equal protection issue, why isn’t polygamy? And the discussion of it is interesting. People who are very, very defensive of SSM, and call opponents bigots or worse, usually seem just fine making sneering comments about polygamy. After all, picking on different Christian faiths is an acceptable bigotry to many. And why not? They seldom saw off your head in response.

    Anyway.

    I think that judicial fiat is very, very dangerous. In some ways, it is most dangerous when that fiat agrees with what you would like to see. I hope that Mr. Feet would be equally happy with judges deciding to do things he does not like, and foisting it upon the public.

    Fashions change. Laws can and perhaps should be flexible, but they should not become spineless, to reflect what people believe or think at a given time.

    And so ends another of my walls of text. Sorry for that. But I hope that everyone can come to agree that judicial fiat is a dangerous thing indeed. But then, I think that government should have limited powers. Other people love the idea of the government “sculpting” a world they believe is perfect. But sculptors can change, and do not always share that perfect world view.

    Simon Jester (dac42a)

  23. Dana/KY, “Normal relationships”? I say two non-related adults falling in love and wanting to enter into a union before the law, to show their commitment to each other, is normal.

    Pat* (de4b93)

  24. Mr. Jester there’s nothing stopping the righteous Republican Party from mounting a vigorous campaign to amend the Constitution for so that America can discriminate against the homos just like Jesus wanted.

    How long is the Republican Party going to these judges get away with treating all Americans like they are equal?

    Tick and also tock time to blow these speakers up I think.

    happyfeet (8ce051)

  25. going to *let* these judges get away with I mean

    sorry I’m doing the commentings and making the breakfast at the same time

    i got NO sleep last night cause of I needed to get up super-early and help get a friend to the airport, so this is gonna be sort of a sunday funday except for it’s tuesday

    ok I got a couple hours, but that’s it

    happyfeet (8ce051)

  26. It’s Wednesday, feets.

    elissa (1f8a0a)

  27. oh crap you’re right

    good catch

    happyfeet (8ce051)

  28. I just think it is ironic, Mr. Feet, to hear you criticize others for being judgmental…when you certainly display your own bigotry pretty often around here.

    I think it is much more about fashion with you than ethical or philosophical consistency.

    You need some kicky new shoes and an outfit from Ross.

    Simon Jester (dac42a)

  29. Ross lol

    happyfeet (8ce051)

  30. there are no ironies here Mr. Jester

    Team R’s relentless and irrational bigotry against gay american people is severely damaging to its brand, to its efforts to remain relevant to young people, to its electoral prospects, and to its ability to serve as a bulwark against the neo-fascist ascendancy in America.

    And they know it.

    Whereas my personal views and thinkings aren’t even a little bit fraught with ramifications of seriousness or consequence.

    happyfeet (8ce051)

  31. Mr. Jester there’s nothing stopping the righteous Republican Party from mounting a vigorous campaign to amend the Constitution for so that America can discriminate against the homos just like Jesus wanted.

    That’s a pretty flip response to Simon’s long and thoughtful comment (which was one of the better comments we have had here in a while). It all comes down to this: do the words “equal protection” mean that the authority to overturn bans on gay marriage already exists in the Constitution? If so, then I suppose you can reasonably put the burden on opponents to be the ones who would have to mount a campaign to amend the Constitution. If not, then that burden would fall on same sex marriage advocates — if they want protection to have the force of federal constitution law.

    The answer to that question comes down to your theory of constitutional interpretation. Simon and I believe in a theory that says judges don’t get to make it up as they go along. (I differ with Simon only to quibble with terminology; what he calls “strict construction” I call “original understanding” which need not be “strict” but can be flexible — but whose touchstone is always what the words meant when written.)

    This is the only method of interpretation that gives force to the text. ANY other method gives the power to the judge who wants to make the words mean whatever he wants them to mean. And Simon’s comment eloquently makes the case why this is a problem.

    At the risk of inviting another flip response, what is your theory of how the Constitution should be interpreted, happy? You have conceded that your interpretation has zero to so with what people understood the words “equal protection” meant in 1868. So how do you justify judges putting their own personal gloss on those words, and how do you address Simon’s concerns about the dangers of that approach?

    Patterico (5a517e)

  32. Mr. Patterico,

    It seems to me that SSM supporters who cite the Equal Protection Clause are claiming that it means there can be no differentiation in the laws, therefore laws which only recognize traditional marriage are unconstitutional. I’m not a lawyer type, so when I read the Equal Protection Clause what I see is a guarantee of a) due process, and b) impartiality before the law (i.e., the law is applied equally to persons in the same circumstances regardless of e.g., social status or wealth). It does not mean there can be no differentiation in the law; if it did, a whole lot of laws, maybe most, would be unconstitutional (e.g., affirmative action, progressive tax rates, laws based on consanguinity etc). If differentiation is allowed, then it is not per se unreasonable to make distinctions based on the nature of a relationship, in this case the sexual relationship.

    Any thoughts are appreciated.

    DKN (efe899)

  33. And anyone who defends twisting the Constitution to obtain a result they like today has no basis to complain about Obama’s power grabs. Same idea: the end seems good, maybe not to you, but to many…so who cares if some old document purports to restrain him?

    Patterico (ee31d3)

  34. I think equal protection means what it was commonly understood to mean in 1868. It did not address gender or abortion or homosexuality.

    But the American people don’t care about being ruled by Platonic philosophers. They think those philosophers should be able to dictate what they like. The Constitution is Dead, as Kevin Gutzman and Tom Woods say in their book bearing that title.

    Pardon me for continuing to mourn its passing.

    Patterico (90470c)

  35. point A I think Mr. P is that these courts aren’t acting in a vacuum –

    it’s all about checks and balances

    and as you say there’s constitutional remedies available

    But my sense is that Team R feels checkmated by these courts cause on some level they understand they’ve lost this little cultural skirmish in a convincing way, and any victories left to them on the battlefield of the same sex marriagings are of the pyrrhic persuasion.

    That’s where we are though – the anti-gays need to amend the Constitution, or forgo discriminatory anti-gay marriaging laws.

    Point B would be empirical.

    How is it that all these judges, appointed by Rs and Ds both, are all coming to the same conclusions with respect to overturning the gay marriage bannings?

    And are they not all arriving at a place what is consonant with the the quintessentially conservative maxim that it’s that government what governs best what governs least?

    Yes yes they are they are!

    It’s enough to give a stalwartly conservative pikachu goosebumps.

    happyfeet (8ce051)

  36. Feets, I’m sure you know very well that refusing to change the definition of marriage does not discriminate against homosexuals. They, like anyone else, are free to marry someone of the opposite sex. And heterosexuals, just like homosexuals, can’t marry someone of the same sex. So where’s the discrimination?

    I don’t agree with the ban on eating dogs, but it would be ludicrous to claim that it’s an Equal Protection violation, just because people who want to eat dog are usually racially distinct from people who don’t want to.

    Milhouse (b95258)

  37. the

    happyfeet (8ce051)

  38. I say two non-related adults falling in love and wanting to enter into a union before the law, to show their commitment to each other, is normal.

    So do I Pat*. As long as they’re not the same sex. And as you said; “non- related”. Nor more than two. Nor with a plant, animal or inanimate object. Or a dead person. Or a minor. Shall I go on? There are and has always been restrictions on marriage. Get over it!

    Homo’s have and always had the right to get married. Whoever said they didn’t? But that’s not what they want, is it? They really want acceptance and even celebration of their marriage. They want to believe and have everyone else believe, that a grotesque sodomy is “Holy Matrimony”. News flash: it never will be and to call a sexually based relationship of sodomites marriage is blasphemy.

    What’s next? Forcing Christian churches to “recognize” and even perform homo marriage? After all, the object of this repugnant philosophy must surely be to end Christianity. It’s an all out assault from Holly Lobby to gay marriage to Sandra Flook to Pajama Boy.

    What is it about leftists when they are not proposing aborting children they’re proposing allowing perverts to adopt and raise them? And we are supposed to celebrate their deviancy.

    Hoagie (4dfb34)

  39. They, like anyone else, are free to marry someone of the opposite sex.

    and I’m the flip one?

    happyfeet (8ce051)

  40. “As someone once said: democracy is four wolves and a sheep voting on what’s for dinner.”

    - Patterico

    I agree with this, but isn’t there tension between this recognition and balking at the idea that majorities can/will interpret the Constitution to suit their purposes? The rest of your comment (#12) seems to forget that power will pursue its own ends regardless of the words of the Framers.

    Leviticus (1aca67)

  41. SSM and/or the denial of SSM is NOT an equal protection issue.

    Traditional family marriages/relationships have existed for centuries.
    Same sex marriages/relationships have also existed for centuries. The fact that society has not recognized such relationships (or that such marriages have been closeted until recently) does not alter the fact that those relationships/marriages have existed for as long as traditional marriages have existed.

    The various states enacted family codes to codify the rights, responsibilities and privileges of the standard marriage relationship. The fact that the various states did not enact statutes to codify the rights priviledges, etc of SSM does not alter the fact that SSM is a different type of relationship than traditional marriage. Numerous states have eventually recognized SSM and have enacted statutes to address the rights privileges, and responsibilities of SSM. They have done this via the democratic process of either incorporating the family code to include SSM as part of the states Traditional marriage/family code or via the enactment of domestic partner statutes.

    A good analogy of the distinction is members and/or a LLC or partnership demanding to be recognized as a corporation. Both types of entities share many characteristics of a corporation, but in fact are not a corporation.
    The denial of availing yourself of a statute designed for a different type business relationship/ and/or personal relationship is no more an equal protection issue than the example of members of an LLC demanding to be treated under the state corporation code.

    joe (debac0)

  42. “I don’t agree with the ban on eating dogs, but it would be ludicrous to claim that it’s an Equal Protection violation, just because people who want to eat dog are usually racially distinct from people who don’t want to.”

    - Milhouse

    It would be ludicrous under the current equal protection framework, where discriminatory impact doesn’t mean anything without discriminatory intent. Good luck arguing that equivalence with the gay marriage bans. Too many politicians shooting their mouths off about Teh Gay Agenda to convince an intelligent judge that there is no discriminatory intent behind laws banning gay marriage.

    Leviticus (1aca67)

  43. “What’s next? Forcing Christian churches to “recognize” and even perform homo marriage? After all, the object of this repugnant philosophy must surely be to end Christianity. It’s an all out assault from Holly Lobby to gay marriage to Sandra Flook to Pajama Boy.

    What is it about leftists when they are not proposing aborting children they’re proposing allowing perverts to adopt and raise them? And we are supposed to celebrate their deviancy.”

    - Hoagie

    You’ve cleared a whole lot of Christ’s admonitions from your head to make way for the crazy repetition of a couple of verses.

    All Jack and no Jill makes John a gay boy. Repeat ad infinitum.

    Leviticus (1aca67)

  44. Leviticus, glad to see you. If you believe that laws should be related to a rational governmental interest, please tell me the rational governmental governmental for making homosexuals spouse. What societal interest does that advance?

    nk (dbc370)

  45. making homosexuals *spouses*

    nk (dbc370)

  46. Same sex marriages/relationships have also existed for centuries.

    No they have not Joe. Not here, not in Asia, Africa or Europe. Nowhere on earth has same sex marriages existed for centuries. Now relationships are relationships and I too have same sex relationships. They’re called friends. But I don’t screw them and I don’t expect special rights because I have them.

    Every person in this country should have the same rights and that means if we give homos special rights we are no longer equal. Or is that the goal? To create yet another class of special, protected people?

    Why are so many Americans determined to destroy the Judeo-Christian birthright which created this Great, Free country and plummet our society and culture into a pit of depravity? What is so wrong about leading a just and moral life that it must be subject to a death by a thousand cuts? Why must good compromise with evil? Only evil wins the compromise.

    Hoagie (4dfb34)

  47. ohnoes not the pit of depravity

    happyfeet (8ce051)

  48. People who are very, very defensive of SSM, and call opponents bigots or worse, usually seem just fine making sneering comments about polygamy.

    I do find that among the more fascinating ironies out there, and it always surprises when a person argues strongly in defense of same-sex marriage, but, in turn, sort of sputters or certainly is strongly derisive about polygamy. That was the case with one very liberal person who popped up here on one occasion, who I don’t believe has stuck around since then. I expected him to be easygoing, and into a leftist free-love ethos, about multi-partner relationships, but he wasn’t.

    The left loves to promote the idea that homosexuality is innate and natural and that society should therefore cater to it. But non-monogamous behavior, particularly in males, is no less innate and actually more common than homosexuality is. The left also always loves the phrase of “consenting adults,” so if a guy wants more than one partner, and his partners all agree to sharing him with one another, what’s the problem?

    The Hollywood crowd is among the most liberal — socially and politically — in America, yet it’s notorious for high divorce rates. I’ve often wondered how many relationships among that group break up because one spouse or merely partner (meaning where a relationship hasn’t even been legally sanctioned) was fooling around on the other spouse or partner?

    Fuddy duddies.

    Whereas my personal views and thinkings aren’t even a little bit fraught with ramifications of seriousness or consequence.

    happyfeet, I truly am not being glib or trying a “gotcha” moment on you, but the way you react so strongly in favor of SSM and argue about it in a way that seems both so oddly vindictive and personalized at the same time makes me wonder if you’re gay or certainly bisexual yourself.

    I admit the following is somewhat a case of flippancy on my part (although it apparently is based on legitimate assumptions): One can respond back to that question with the retort of “heck, if I’m that way then I’m in good company, since no less than the President of the US swings both ways.”

    Mark (5e05a0)

  49. You’ve cleared a whole lot of Christ’s admonitions from your head to make way for the crazy repetition of a couple of verses.

    I do not understand what that means. Are you saying that I’m a bad Christian because I don’t believe that sodomy is okay? Or just that you believe me to be crazy because I don’t agree with you?

    Hoagie (4dfb34)

  50. you just keep on wondering Mr. Mark whereas me I will keep wondering how long Team R’s poor little beleaguered boat is going to keep taking on water trying to rescue traditional marriage from the marauding homos

    glub glub

    happyfeet (8ce051)

  51. I will keep wondering how long Team R’s poor little beleaguered boat is going to keep taking on water trying to rescue traditional marriage from the marauding homos

    I assume happyfeet, that by saying “Team R” you believe the destruction of traditional marriage and traditional family to be a political problem. I don’t. I believe it to be a moral problem. I don’t believe it’s Republicans who are beleaguered by the marauding homos, but society and culture and morality as a whole. And although you most likely consider yourself cute and glib with the “marauding homos” quip, any society which accepts psychological depravity as normalcy is not long on survival.

    Hoagie (4dfb34)

  52. I don’t see any relationship, logical or empirical, between gay marriagings and this putative destruction of traditional marriage Mr. Hoagie.

    I think Americans discriminating against other Americans is a moral problem, but also a legal problem. And I think people are having just a dickens of a time explaining to judges why gay people shouldn’t be treated equally under the law where marriage is concerned.

    I also think “breakfast biscuits” are same as cookies, and should be treated as such.

    happyfeet (8ce051)

  53. you just keep on wondering Mr. Mark

    I do wonder, happyfeet, as to what factors shape a person’s opinion, but not just about this one controversy but issues in general. There certainly are cases of people who become squishy about SSM because they have children or good friends who are gay or bi. It’s also said that people who are overly, extremely hostile to homosexuality may be gay or bi themselves, at least latently so.

    Your very negative opinion about polygamy, yet hugs-hugs attitude about SSM, is one major reason why I’m puzzled by people like you.

    Mark (5e05a0)

  54. polygamy is tacky

    and not conducive to wealth-creation

    plus it’s tacky

    happyfeet (8ce051)

  55. Hoggie – let me clarify my point-

    “Same sex marriages/relationships have also existed for centuries.

    No they have not Joe. Not here, not in Asia, Africa or Europe. Nowhere on earth has same sex marriages existed for centuries. Now relationships are relationships and I too have same sex relationships”

    My point is that SSM/SS relationships has existed through out the history of the world – Its just that most states and most countries have not recognized SSM under their respective statutes/laws and have not codified those marriages/relationships. My second point is that SSM and traditional marriage are distinctly different (While the SSM proponents point out that there are many common themes, SSM remains distinctly different). Since the SSM/relationship is distinctly different, there remains valid legal reasons to treat such marriages different under the statutes.

    This fact is a factor in demonstrating why the denial of SSM under the the various statutes created for traditional marriages is not an equal protection issue under the 14th Ad.

    joe (debac0)

  56. Excluding same-sex couples from marriage does not change the number of heterosexual couples who choose to get married

    It might be one more factor that could people not to take state-sponsored marriage seriously, and the law might get increasingly disconnected from reality.

    But the real problem here is the defenders of the limitation of what marriage is have bene pushed into making abad argument.

    A real argument would be that there are all sorts of laws governing marriage, and the situation of a homosexual couple is not identical to that of a heterosexual one. They are not the same thing.

    For one thing, for a homosexual couple it is very reasonable to say that the two parties should have been living together for some time before they can get married.

    This is not at all what you would want for heterosexual couple, and not what religion endorses.

    Sammy Finkelman (95e288)

  57. “Leviticus, glad to see you. If you believe that laws should be related to a rational governmental interest, please tell me the rational governmental governmental for making homosexuals spouse. What societal interest does that advance?”

    - nk

    I don’t spend too much time worrying about what laws “should” be anymore – I think about what they are and try to figure out how they affect me and the people I care about. Law is just another name for the power of the strong to impose their will. The best thing that can be said about it is that acknowledges many types of strength.

    That said, if I thought that laws should be related to a rational government interest, I would proffer the government’s rational interest in promoting committed monogamous relationships as the justification for legalizing gay marriage.

    Leviticus (1aca67)

  58. #52 –

    I don’t see any relationship, logical or empirical, between gay marriagings and this putative destruction of traditional marriage Mr. Hoagie.

    I think Americans discriminating against other Americans is a moral problem, but also a legal problem. And I think people are having just a dickens of a time explaining to judges why gay people shouldn’t be treated equally under the law where marriage is concerned.

    happyfeet (8ce051)

    SSM/relationships/homosexual relationships have existed for centuries through the world – with the caveat that the have not been recognized under the laws of the various countries/states jurisdiction. For that reason, I do think that society (the various states, etc) should begin to enact statutes to codify the rights, responsibilities and privileges of SSM. My preference would be that the statutes are created as separate statutes similar to the domestic partner laws which have been enacted in numerous states.

    My point which I have made is the denial of SSM under the traditional marriage statutes is not an equal protection issue.

    joe (debac0)

  59. It’s silly for the Right to laud marriage as the means to commitment and fidelity, and to sing the praises of commitment and fidelity, and to deny marriage to the LGBT community, and then to deride that community for promiscuity or a lack of commitment and fidelity.

    Leviticus (1aca67)

  60. Mr. joe here is what the hotairs say about the equal protection clause and its application in the case at hand

    …the equal protection argument. Courts will apply some form of heightened scrutiny, i.e. extra skepticism, to a law that discriminates against certain historically persecuted groups. Do gays qualify as one of those groups? Sort of, says Heyburn — but it really doesn’t matter, because gay-marriage bans don’t make sense even if you’re analyzing them with no extra skepticism at all. In other words, even if you give the state legislature the maximum amount of deference due under equal protection law, an SSM ban is DOA in court.

    what i take from this is that gay marriage bans are prima facie discriminatory and deeply unamerican. You know – like Nazis.

    happyfeet (8ce051)

  61. That’s what I think too. I would defer to the legislatures. To the States for their traditional role, and to Congress for those matters (taxes, pensions, immigration, etc.) where it needs a definition of marriage. I praise Vermont for being the first to do it right. Illinois just did it, too. I think the courts, state or federal, are usurping legislative power.

    nk (dbc370)

  62. Pat* wrote:

    Dana/KY, “Normal relationships”? I say two non-related adults falling in love and wanting to enter into a union before the law, to show their commitment to each other, is normal.

    I would say that two non-related heterosexual adults falling in love and wanting to enter into a union before the law, to show their commitment to each other, is normal, and that without the qualifier I added, normalcy is not present.

    The Dana who chose his words carefully (3e4784)

  63. Joe hoped we wouldn’t notice:

    Traditional family marriages/relationships have existed for centuries. Same sex marriages/relationships have also existed for centuries. The fact that society has not recognized such relationships (or that such marriages have been closeted until recently) does not alter the fact that those relationships/marriages have existed for as long as traditional marriages have existed.

    Note the comparison Joe made. If you read it, and knew nothing else, from Joe’s prose you would think that “Traditional family marriages/relationships” and “Same sex marriages/relationships” are both comparable and similar in number. The truth is entirely different: homosexual relationships have been frowned upon almost universally — ancient Greece would be the notable exception, but even there men were expected to marry women and have children — and homosexual marriages almost unheard of.

    Homosexual relationships could be frowned upon precisely because they are so rare, and we ought not allow propaganda to make such seem common or ordinary or normal.

    The Dana who spotted it. (3e4784)

  64. I think there are two issues at play here, Patterico.

    The first is, do you accept the general frame under which these decisions are being rendered? That is to say, the courts are consistently saying that in concept equal protection applies, and that therefore the laws in question have to meet some level of heightened scrutiny (depending on the court this could be strict, or it could be rational basis plus).

    I understand that you disagree with this frame, think that the EPC doesn’t apply, and that therefore this standard of scrutiny doesn’t apply.

    But there’s another question, which is, *assuming this standard of scrutiny applies*, do the arguments being put forward meet it?

    How you feel about one doesn’t necessarily indicate how you feel about the other.

    I agree that it is impolitic of the judge to say that “The state’s attempts to connect the exclusion of same-sex couples from marriage to its interest in economic stability and in “ensuring humanity’s continued existence” are at best illogical and even bewildering.” And yet, at the same time, I’ve been engaged in this debate for more than twenty years and I’ve never once heard an even *plausible* argument for why including same-sex couples within ‘marriage’ would in any way harm the marriages of other couples, and I’ve never heard a plausible argument for why a ban on SSM isn’t both under- and over-inclusive if it’s directed at the interest in promoting procreation.

    So in my view, the judge is impolitically calling a spade a spade.

    aphrael (e777bc)

  65. For what it’s worth, i’m probably alone among liberals in believing that there’s a good argument that the progressive income tax violates the equal protection clause.

    aphrael (e777bc)

  66. Kevin M – *as a tactical matter*, I think there’s a good debate about whether this string of cases is more like _Roe_ or more like _Loving_ and _Brown_.

    I agree as a tactical matter that it would be better to settle this in the legislature, and I’m particularly disappointed in the Prop 8. case because of that (as I think California voters would have repealed it in 2016).

    But I also have a great deal of sympathy for those who think that the issue is more like _Brown/Loving_ than it is like _Roe_, and that the results will be greater political legitimacy than was found with _Roe_.

    aphrael (e777bc)

  67. aphrael said something I like!

    For what it’s worth, i’m probably alone among liberals in believing that there’s a good argument that the progressive income tax violates the equal protection clause.

    As far as I am concerned, the Sixteenth Amendment was the worst thing ever foisted upon a (supposedly) free people.

    The Framers had it right: everybody should be taxed identically, with Patterico and Bill Gates and Hoagie all paying the same dollar amount in taxes.

    The Dana who approves (3e4784)

  68. And the rest of his comment, Dana? What is the government’s rational interest in prohibiting gay marriage?

    Leviticus (1aca67)

  69. The thing is, the sixteenth amendment doesn’t authorize *progressive* income taxation per se. It could be read to simply authorize a flat tax.

    And the trouble I have is that a progressive tax requires treating people differently based on their amount of income (in a way that a flat tax doesn’t).

    I can *just barely* find this acceptable using the rationale that the progressive tax is an attempt at approximating a tax on marginal utility, and that if the goal is to tax everyone the same quantity of marginal utility, then it isn’t actually an equal protection violation.

    But I think it’s a serious question that isn’t obviously answered one way or the other, and it frustrates me that most liberals won’t even acknowledge the point.

    aphrael (e777bc)

  70. Aphrael wrote:

    But I also have a great deal of sympathy for those who think that the issue is more like _Brown/Loving

    How, I have to ask, if the state cannot restrict legal marriage to non-consanguineous heterosexual couples, if procreation is not a valid state concern, can the state legitimately exclude consanguineous heterosexual couples, or even limit marriage to just two people?

    If the legislature has discretion at all here, then why wouldn’t the legislature’s discretion include whether the legalized marriage was heterosexual or not?

    The inquisitive Dana (3e4784)

  71. In the Third Book of Moses, in which Chapter 18, verse 22 is instructive, it was written:

    And the rest of his comment, Dana? What is the government’s rational interest in prohibiting gay marriage?

    The government has no business interfering in consensual homosexual relationships, in that such harm no outside persons. But marriage is something on which society is organized and which the state extends a real preference, and I see no reason that the state cannot extend preferences.

    We do it in all sorts of things. Walking down the street naked does not actually harm anyone else, but it is a legitimate preference of society to prohibit it. The consumption of dogs and cats harms no one, but the state and society have a legitimate preference in banning them.

    The Dana with common sense (3e4784)

  72. Is it a legitimate interest of society to allow one person to walk naked down the street and prohibit another from doing so? Your analogy begs the question as to whether or not gay marriage offends society anymore.

    Leviticus (1aca67)

  73. Is it a legitimate interest of society to allow a white person to walk naked down the street and prevent a black person from doing so?

    Leviticus (1aca67)

  74. I know neither of us is saying anything new, by the way.

    Leviticus (1aca67)

  75. The tax is on incomes, not on people. Incomes have no rights. I would like to see some incomes taxed at 105% and others not taxed at all. Whether is by size or whether it’s by source. In any event, if you want to be technical, there was no equal protection clause that applied to the federal government before the Supreme Court invented the time machine in Bolling v. Sharpe in 1954 and incorporated it into the Fifth.

    nk (dbc370)

  76. Gay is not a race. Anyway. Are we talking Halle Berry or Oprah? Kate Upton or Rosanne Barr?

    nk (dbc370)

  77. I believe the courts are there to strike down unconstitutional laws, and should boldly do so — far more often than they do, frankly.

    . . .

    But, sarcasm aside, you’re right: making up shit and pretending it’s in the Constitution is an age-old game in this country — not quite as old as marriage, perhaps, but certainly a practice going back to John Marshall.

    So . . .

    The courts are there to strike down unconstitutional laws;
    Despite that authority having been made up by the courts.

    Sam (e8f1ad)

  78. And race wasn’t a protected category until enough people decided it should be. So what?

    This is what’s so interesting: does the Constitutional argument really matter, if enough people think the right should be granted? It didn’t seem to matter when they thought the right shouldn’t be granted?

    Leviticus (1aca67)

  79. Well it was the Reconstruction States not strictly speaking the United States, but it was still done by Constitutional Amendments and the Civil Rights Acts (three I believe between 1868 and 1871).

    nk (dbc370)

  80. “… Law is just another name for the power of the strong to impose their will…”

    But, Leviticus, isn’t that why we have a Constitution to put a brake upon the instincts of the mob to do just that, and to protect the Rights of minorities – and in this instance, it certainly seems that those who promote and advocate for traditional marriage are the minority, as they have no standing in the culture.
    The biggest and most convenient target of bigotry in today’s culture seems to be a White, Christian, Heterosexual, Male – or at least the most accepted by the culture that prevails within The Ruling Class.

    askeptic (efcf22)

  81. “… the government’s rational interest in promoting committed monogamous relationships as the justification for legalizing gay marriage.”

    So, if government has that interest, should it penalize relationships that do not involve monogamy, or marriage?
    Would it not be more rational for government to just bow out and let people live their lives as they see fit as long as they are not causing physical harm to others – neither sanctifying, nor penalizing marriage in any way?

    askeptic (efcf22)

  82. Until 1925, Indians had to be naturalized. Until 1943, all Asians not born in the United States were not qualified for citizenship, and most were also considered illegal aliens. Both of those things were cured by simple legislation.

    nk (dbc370)

  83. (as I think California voters would have repealed it in 2016).
    aphrael (e777bc) — 7/2/2014 @ 9:26 am

    Yes, that would be the expected result after having a “sword held against their necks” by the antics of the anti-Prop-8 side both then and now.

    askeptic (efcf22)

  84. Leviticus (1aca67) — 7/2/2014 @ 10:02 am

    It offends some, a very large “some”.

    askeptic (efcf22)

  85. Leviticus (1aca67) — 7/2/2014 @ 10:16 am

    There should be only one Protected Category: AMERICANS!

    askeptic (efcf22)

  86. Askeptic at 82, It would be the expected result given the way the poll numbers have been shifting.

    See http://www.field.com/fieldpollonline/subscribers/Rls2443.pdf, which shows that support for SSM in CA rose fgrom 51% in 2008 to 61% in 2013. Three more years of the same trend ….

    aphrael (e777bc)

  87. “The biggest and most convenient target of bigotry in today’s culture seems to be a White, Christian, Heterosexual, Male – or at least the most accepted by the culture that prevails within The Ruling Class.”

    - askeptic

    Yes, poor us. We have it so rough.

    Leviticus (1aca67)

  88. gee willikers that’s a big increase Mr. aphrael

    happyfeet (8ce051)

  89. “…if enough people think the right should be granted?…”

    And that is what we have Legislatures for, to translate the will of the People, as long as it does not violate basic Human Rights of minorities within that People – which are supposed to be vouchsafed by the Courts.

    askeptic (efcf22)

  90. The idea that rights were somehow superior to statutes seems to have gone by the wayside; they’ve become inferior to them.

    htom (412a17)

  91. aphrael (e777bc) — 7/2/2014 @ 10:40 am

    I submit that the poll numbers were the result of duress, and are thus invalid.

    askeptic (efcf22)

  92. Leviticus (1aca67) — 7/2/2014 @ 10:41 am

    You’re only a victim if you believe you are, or should be, or are willing to be.
    Frankly, I’m not!

    askeptic (efcf22)

  93. Imperial presidents are not the only threat to our country. We should follow Shakespeare’s lede” “The First Thing We Do, Let’s Kill All the Lawyers” And, make sure to include the judges.

    Jim (dc5067)

  94. In the Third Book of Moses, it was written:

    Is it a legitimate interest of society to allow one person to walk naked down the street and prohibit another from doing so? Your analogy begs the question as to whether or not gay marriage offends society anymore.

    We could argue the differences between allowing this Dana and the prettier Dana to do the same thing. :) However, if my “analogy begs the question as to whether or not gay marriage offends society anymore,” doesn’t that automatically become a question for the legislatures, and not the courts?

    The not quite as pretty Dana (3e4784)

  95. Askeptic at 82, It would be the expected result given the way the poll numbers have been shifting.

    I agree with askeptic on this, aphrael. No doubt that public sentiment in CA is generally moving in the direction of acceptance of SSM, but I think it is heavily sped along by the mandatory conformity that the pro-SSM side is enforcing. If you are a 20-year-old college kid and not quite sure you are comfortable with SSM, do you think you dare speak about against it and risk being accused of a hate crime on your undoubtedly left-leaning campus? Everyone sees what happened to Mr. Eich at Mozilla, and word is out that if you don’t board the bandwagon right now the pro-SSM forces are going to make your life very unpleasant.

    Again, I’m sure that overall people are moving in a pro-SSM direction, but the huge jump in the CA number over just one year suggests to me that at least some people are being bullied into expressing acceptance.

    JVW (feb406)

  96. Our Windy City barrister wrote:

    The tax is on incomes, not on people. Incomes have no rights. I would like to see some incomes taxed at 105% and others not taxed at all.

    Alas! If the tax were only on incomes, and not on people, then the only punishments which could be imposed for failure to pay income taxes would be fines and seizures of those incomes. Trouble is, we can, and do, put actual people in jail for income tax evasion.

    And why would you want to see some incomes taxed at 105%, or anyone taxed differently than someone else?

    The Dana who isn't an attorney (3e4784)

  97. You know, if here was a way that wasn’t tedious, it would be nice to subdivide a topic such as this into separate streams,
    as the discussion is like the shot scatter of a sawed off shotgun at 100 yards, all over the place.
    Some topics regard the law specifically, and different sub-arguments at that,
    some have to do with political tactics and expediency,
    some have to do with sociology,
    some have to do with morality, from a specific theological perspective or not,
    and some are intended for humor +/- snark +/- disrespectful flame throwing.

    MD in Philly (f9371b)

  98. 95- This is why the 16th-A should be repealed, and the Feds should pass a National Sales (Excise) Tax while invoking the Supremacy Clause, striking down all Sales Taxes imposed by lesser jurisdictions.

    askeptic (efcf22)

  99. Is it a legitimate interest of society to allow a white person to walk naked down the street and prevent a black person from doing so?

    Leviticus (1aca67) — 7/2/2014 @ 10:06 am

    In New Mexico, only if said persons are not unshaven womens…

    Colonel Haiku (4a65e2)

  100. 96.. . or anyone taxed differently than someone else?
    The Dana who isn’t an attorney (3e4784)

    For the same reason I think it is fine to have different insurance rates for different things:
    Because some people have more or less to lose than others, and consequently face a different risk of catastrophic loss than others.

    Of course along with that I think all other taxes, fees, tariffs, imposts, charges, and whatever, aside from exceptionally modest registration fees for corporations and vehicles, and tonnage based use charges for ports, should be completely eliminated so people can identify more precisely exactly how much they are paying in taxes.
    And tax day should be moved to October 15th so people can more easily connect who increased or is promising to increase how much they just paid.

    Sam (e8f1ad)

  101. 105% — Gambling, prostitution, illegal drugs
    85% — imports, politicians, all incomes above the first $1 million
    60% — all government employees not politicians
    50% — professional athletes, actors, other performers
    40% — highest rate for incomes up to the first $1 million
    -
    -
    -
    0% — day laborers in none of the above categories

    ?

    nk (dbc370)

  102. aphrael (e777bc) — 7/2/2014 @ 9:23 am

    I’ve never heard a plausible argument for why a ban on SSM isn’t both under- and over-inclusive if it’s directed at the interest in promoting procreation.

    Because that isn’t the reason for the ban, although there is rational basis for keeping a distinction between heterosexual marriages and whatever you want to do about connections between other adults – and really why should these recognized cunions it be limited to instances where there is sex involved??

    The rational basis is that there are all sorts of laws where marriage is taken into account, and you can go by the avaregae or usual situation in making such rules, and this kind of situation is quite different from heterosexual unions between a man and a woman, and the general things you would expect are not the same. So at a minimum, the same word should not be used. (as I said, one possible distinction is that non-hetersexual unions should require some proof of committment before being legally recognized. But no state has attempted to pass such a law.)

    That’s for one.

    Another aim, of course is to discourage homosexuality, or at least public acknowledgement of it, because it is at least undesirable, and may be prevented. But this rests on a view of homsexuality that is currently out of favor.

    So in my view, the judge is impolitically calling a spade a spade.

    The defendants are using th wrong arguments, which for some reason they settled on.

    Sammy Finkelman (95e288)

  103. Leviticus,

    Your white/black person walking naked down the street analogy is an epic fail.

    If you want to get all technical and stuffs or whatevers, there actually isn’t a law that says gay people can’t get married. What the law says is that a person—regardless of their sexual orientation—must marry someone of the opposite gender.

    If homosexual actor Nathan Lane were to apply for a marriage license to marry a woman, he would not be denied in any state. That is because there is no law saying that a gay man cannot get married.
    By the same token, a heterosexual male such as Brad Pitt would be denied a marriage license to marry a man. But he would be allowed to marry a woman.
    Thus, the law is being applied equally to both homosexual Nathan Lane, and heterosexual Brad Pitt.

    Elephant Stone (6a6f37)

  104. 100.

    105% — Gambling, prostitution, illegal drugs

    What about the money somebody steals to pay for illegal drugs?

    This is currently theoretically taxed at standard income tax rates, but in reality, is not taxed at all, and the money made from theft is not counted either when it comes to government benefits. It’s almost universally overlooked.

    0% — day laborers in none of the above categories

    I agree with that. That should not be taxed.

    Sammy Finkelman (95e288)

  105. 65. aphrael (e777bc) — 7/2/2014 @ 9:23 am

    For what it’s worth, i’m probably alone among liberals in believing that there’s a good argument that the progressive income tax violates the equal protection clause.

    The equal protection clause applies only to the states, not the federal government. That’s why the United States Supreme Court had to hunt around for something else when they wanted to desegregate the public schools of the District of Columbia.

    They decided on the 5th amendment’s “due process” clause.

    Sammy Finkelman (95e288)

  106. #63 – Dana my point is not to promote or to condemn SSM – only to point out that the equal protection clause of the 14th is not applicable to SSM

    Joe hoped we wouldn’t notice:

    Traditional family marriages/relationships have existed for centuries. Same sex marriages/relationships have also existed for centuries. The fact that society has not recognized such relationships (or that such marriages have been closeted until recently) does not alter the fact that those relationships/marriages have existed for as long as traditional marriages have existed.

    Dana
    - My point is to explain why the equal protection clause is being misapplied with respect to SSM.

    Both Traditional marriages and SSM have existed for centuries, albiet SSM in much smaller numbers, not withstanding that SSM has not be legally recognized until recently.

    All the states and most countries have enacted statutes to govern Tradtional marriages. The fact that a state legislature has not enacted statutes to govern a different type of transaction or a different type of relationship does not make the enactment of the first statute an equal protection violation.

    joe (debac0)

  107. Elephant Stone (6a6f37) — 7/2/2014 @ 11:40 am

    If homosexual actor Nathan Lane were to apply for a marriage license to marry a woman, he would not be denied in any state.

    Because there is no law saying that two marriage partners have to be in love, or intend to have sex.

    For immigration purposes, where there is some attempt to distinction between marriage that are “real” and marriages that are not, there is the assumption that marriages take place only because of uncontrollable love.

    People get questioned, but not about sexual intercourse.

    Sammy Finkelman (95e288)

  108. Ok, Sammy. All proceeds of crime and instrumentalities of crime too. I welcome all input. It would only be a temporary thing, anyway, until I pass a law making “exploitation of the free market” a felony, and I can place all the Fortune 500 companies under receivership as criminal enterprises, with my own CEOs and directors, and their profits flowing to the Treasury.

    nk (dbc370)

  109. 72. Leviticus (1aca67) — 7/2/2014 @ 10:02 am

    Is it a legitimate interest of society to allow one person to walk naked down the street and prohibit another from doing so?

    You could argue there was a rational basis for prohibiting a white person from doing so, because he or she would get sunburned and maybe skin cancer, but that this is not a problem for someone with darker skin, and even that, as matter of fact, maybe it is even a benefit to them because they need more exposure to the sun to get the same amount of Vitamin D as someone with lighter skin, and that this way they wouldn’t need to eat dairy or take pills.

    The Dana with common sense (3e4784) — 7/2/2014 @ 9:41 am

    The consumption of dogs and cats harms no one, but the state and society have a legitimate preference in banning them.

    The idea disturbs people because cats and dogs are pets. Either that is considerd harm, or it’s not.

    Sammy Finkelman (95e288)

  110. All the states and most countries have enacted statutes to govern Tradtional marriages. The fact that a state legislature has not enacted statutes to govern a different type of transaction or a different type of relationship does not make the enactment of the first statute an equal protection violation.

    Very well said.

    nk (dbc370)

  111. 107. nk (dbc370) — 7/2/2014 @ 11:54 am

    Ok, Sammy. All proceeds of crime and instrumentalities of crime too.

    But then we get to a situation where someone owes more tax than they can pay.

    Sammy Finkelman (95e288)

  112. nk (dbc370) — 7/2/2014 @ 11:25 am

    Since most politicians are lawyers, the rule should consider all lawyers as politicians – either in fact, or training.

    askeptic (efcf22)

  113. To be blunt: when we finally legally married, Spice (f) and I (m) knew it would be highly unlikely that we could have biological children (both of us having medical conditions making highly unlikely for either of us to have, with the best techniques available then, successful fertilization, implantation, growth, and delivery of a healthy baby.) :(

    Should we have been forbidden to marry?

    Knowing that, should we abandoned our love relationship to find others, so there could be two childless couples?

    Should we have concealed that from our spouses-to-be?

    Geesh.

    (And my sister-in-law and her husband were questioned about sexual intercourse, and provided requested DNA samples of themselves and their first child. Perhaps these days those things do not happen. I’ll pretend I know they don’t.)

    htom (412a17)

  114. All proceeds of crime and instrumentalities of crime too

    IWSTM that would fall into the “politician” category.

    askeptic (efcf22)

  115. htom (412a17) — 7/2/2014 @ 12:04 pm

    Consider it the progress of civilization, or society, that you were not cast out into the wilderness.

    askeptic (efcf22)

  116. ==MD in Philly (f9371b) —7/2/2014 @ 11:06 am==

    You know Doc, as a very famous and insighful rock band once advised: “You can’t always get what you want”. :)

    elissa (1f8a0a)

  117. Britney Spears once said, “Oops, I did it again.”

    Elephant Stone (6a6f37)

  118. htom (412a17) — 7/2/2014 @ 12:04 pm

    (And my sister-in-law and her husband were questioned about sexual intercourse, and provided requested DNA samples of themselves and their first child. Perhaps these days those things do not happen. I’ll pretend I know they don’t.)

    DNA samples of parents and chldren definitely are done, and if someone is told that DNA from one the mother is not necessary, that’s wrong.

    They stopped asking about sexual intercourse, I believe, but ask about everything else. This used to be done, but now it’s a no-no.

    Sammy Finkelman (95e288)

  119. Jefferson Starship once said, “We built this city.”
    And then President Obama replied, “You didn’t build that.”

    Elephant Stone (6a6f37)

  120. Mr Finkelman wrote:

    The consumption of dogs and cats harms no one, but the state and society have a legitimate preference in banning them.

    The idea disturbs people because cats and dogs are pets. Either that is considerd harm, or it’s not.

    What you have just said is that some people take offense, and are conflating that with harm. Using that argument, I’d guess that there are a lot more people who would take offense at the notion of same-sex marriage than would actually want to enter into one, so, by the argument that (I don’t think you seriously) made, the offense I take at a homosexual couple trying to get legally married causes me harm, which ought to be enough to ban the notion completely.

    My point is that we are talking about societal preferences, enacted into law, not a strained concept of harm, and that such are legitimate, and ought to include most states’ bans on homosexual marriage.

    Why is bestiality banned, since no one is actually harmed? If Colonel Haiku decides to copulate with a sheep — ewe, just ewe! — many people will be very offended, but I fail to see where they have been actually harmed.

    By the way, the local Chinese restaurant makes some great curry kitten. :)

    The snarky Dana (3e4784)

  121. It’s sad, Elephant Stone, to realize that the pop stars of almost any era are more insightful about what’s going on than the current President of the United States is.

    elissa (1f8a0a)

  122. I think so, Ms. elissa:

    https://www.youtube.com/watch?v=SHhrZgojY1Q&feature=kp

    Except we did.

    Simon Jester (c8876d)

  123. htom, at 112:

    (a) i’m very sorry to hear that.

    (b) no, you should not have been forbidden to marry.

    (c) but if the official reason that *I* am forbidden to marry my husband is that we can’t have kids, and you are allowed to marry, then that suggests that the *actual* reason I am forbidden to marry is not in fact the official reason, as the official reason would cover you as well.

    aphrael (e777bc)

  124. Sammy, that’s a fair point as to the federal progressive income tax, but states have similar taxes which ought to be subject to a complaint based on equal protection.

    aphrael (e777bc)

  125. And Ms. elissa, let me take you back to Ray Davies’ take on 1979:

    https://www.youtube.com/watch?v=gCR83LxGKkg

    Sadly, it still applies today.

    Simon Jester (c8876d)

  126. Good one, Simon Jester!

    elissa (1f8a0a)

  127. 123. aphrael (e777bc) — 7/2/2014 @ 1:31 pm

    Sammy, that’s a fair point as to the federal progressive income tax, but states have similar taxes which ought to be subject to a complaint based on equal protection.

    But equal protection really means that all people, not all dollar bills, be treated the same.

    Sammy Finkelman (95e288)

  128. Sammy, what’s the argument that I am being treated the same as the man down the street if I have to pay the state 6% of my income but he has to pay the state 9% of his?

    aphrael (e777bc)

  129. 127. aphrael (e777bc) — 7/2/2014 @ 1:49 pm

    Sammy, what’s the argument that I am being treated the same as the man down the street if I have to pay the state 6% of my income but he has to pay the state 9% of his?

    That would be the case if you were singled out for some reason, say because of where you lived, but the same tax law applies to everyone.

    There might possibly be a equal protection argument when some states argue about domicile. A resident of the state – and this is not lightly lost in New York – to stop yearly audits Rush Limbaugh finally sold his apartment in New York and even ceased broadcasting from here – is taxes on out of state income, but a non-resident is not.

    http://www.washingtonpost.com/politics/how-the-clintons-went-from-dead-broke-to-rich-bill-earned-1049-million-for-speeches/2014/06/26/8fa0b372-fd3a-11e3-8176-f2c941cf35f1_story.htm

    Sammy Finkelman (95e288)

  130. The kink was another thing I wanted to post.

    Bill Clinton has been paid $104.9 million for 542 speeches around the world between January 2001, when he left the White House, and January 2013, when Hillary stepped down as secretary of state, according to a Washington Post review of the family’s federal financial disclosures.

    Although slightly more than half of his appearances were in the United States, the majority of his speaking income, $56.3 million, came from foreign speeches, many of them in China, Japan, Canada and the United Kingdom, the Post review found.

    The financial industry has been Clinton’s most frequent sponsor. The Post review showed that Wall Street banks and other financial services firms have hired Clinton for at least 102 appearances and paid him a total of $19.6 million…

    Is he really getting money for speeches, or drawing an audience, or do these people have something else in mind? This year, Hillary also gets to collect money.

    Sammy Finkelman (95e288)

  131. How is a rule which says that all persons who make between $x and $y shall pay 6% while all persons who make between $y and $z shall pay 9% *different* than a rule which says that all men shall pay 6% and all women shall pay 9%?

    Individuals are not being singled out either way.

    aphrael (e777bc)

  132. Sammy wrote in #128,
    “That would be the case if you were singled out for some reason, say because of where you lived, but the same tax law applies to everyone.”
    —————

    But traditional marriage laws apply equally to everyone, too, in the sense that everyone must marry someone of the opposite gender, whether they’re gay, straight, bi-sexual, questioning, wondering, hermaphrodite, or a swinger.
    Look, if a heterosexual such as Brad Pitt wants to marry a man, he is not allowed to, anymore than homosexual man such as Nathan Lane would be allowed to marry a man. By the same token, Nathan Lane is not disallowed from marrying a woman, simply because he’s a homosexual.
    Thus, I have just proven the law is applied the same to everyone.

    But as our friend aphrael points out, the tax rates are applied differently, simply based on a person’s income earned. In fact, they can vary from year-to-year for the same person.

    Elephant Stone (6a6f37)

  133. 52. I don’t see any relationship, logical or empirical, between gay marriagings and this putative destruction of traditional marriage Mr. Hoagie.

    happyfeet (8ce051) — 7/2/2014 @ 8:10 am

    That’s because you don’t have any intention of going into harm’s way of a fact.

    I also think “breakfast biscuits” are same as cookies, and should be treated as such.

    I suppose so you an continue in your ignorance to call better informed people who take marriage more seriously than “breakfast biscuits” and cookies names like bigot and homophobe.

    http://www.nationalreview.com/corner/381148/state-dept-lgbt-speaker-we-dont-want-gay-marriage-we-want-no-marriage-ian-tuttle

    I agree that we should have the right to marry, but I also think equally that it is a no-brainer that the institution of marriage should not exist. . . . Fighting for gay marriage generally involves lying about what we’re going to do with marriage when we get there, because we lie that the institution of marriage is not going to change, and that is a lie. The institution of marriage is going to change, and it should change, and again, I don’t think it should exist.

    It’s only fair to assume, feets, that since you’ve chosen to ally yourself with such people that you are lying, too. Or do you think e unfair? All I an say is that denying/lying about the facts, i.e. “[t]he institution of marriage is going to change” to the point where it is devoid of meaning, followed by the name calling, is exactly the form that Ms. Gessen’s (and other proponents of SSM/marriage destruction)lying takes.

    And you do the same thing. I’ve only drawn the logical conclusion. You could prove me wrong if you want, by not repeating the lies that SSM proponents tactically deploy in their quest to destroy marriage.

    There is no such thing as “SSM” and “traditional marriage.” There is only marriage. Proponents of SSM, who are principally feminists and not gays (although there’s a lot of overlap because for many if not most radical feminists being lesbian isn’t a matter of orientation but politics) have been quite open about the fact that their main concern is about breaking the link between marriage and procreation. They only seized on SSM as a tool to do that, since there can be no gay marriage until prorogation was eliminated from the definition of marriage. Pretending this was a civil rights issue about gays was the best way to break that link. The desired end state is that women would be freed from the oppressive patriarchal institution of marriage, as having children outside of marriage would necessarily be just as good as having he within marriage.

    The intended result has nothing to do with gays marrying, as Ms. Gessen and countless other SSM proponents before her have admitted when they’ve let the mask slip and spoke honestly. It’s about putting marriage out of business. Where SSM has been legalized, it’s largely had that effect. So my opposition to changing the definition of marriage only tangentially involves gays. They’re only involved because the feminists decided to conscript them into their war against the patriarchy.

    Steve57 (c4c6a6)

  134. What is the government’s rational interest in prohibiting gay marriage?

    For the five hundredth time Leviticus, the government has never prohibited any damn gay from marrying. Any gay can marry a woman and any lesbian can marry a man. The law only prohibits marriage between persons which are by our standards immoral. That includes same sex, marrying a 9 year old, your brother, your mother, ten women, etc., etc.. How many times must I say “gays can get married”? But Holy Matrimony cannot include an immoral precept. Marriage is and has been traditionally in this country a Judeo-Christian institution. Any dumbass government can allow any dumbass contract for any dumbass reason. But Holy Matrimony is a religion based sacrament and not a government condoned contract. Holy Matrimony existed long before America. Now you can argue that a couple of gays can “marry” and bang their butts off but that does not make it moral, or right, nor in a society which should strive to be moral and right and to care for the future of it’s survival, can codifying immorality as law be a benefit.

    Hoagie (4dfb34)

  135. ==All I can say is that denying/lying about the facts, i.e. “[t]he institution of marriage is going to change” to the point where it is devoid of meaning, ==

    == It’s about putting marriage out of business. ==

    Steve57, when you look at what’s happened over the past 30 years to the “institution of marriage”: the 50% divorce rate; the percentage of “illegitimate” children being born to unmarried people (perhaps as the result of a one night stand or even worse the kind of random casual sex that keeps Maury Povich’s DNA tests in business); the abortions even some married women are having; 16 year olds regularly copulating; the numbers of heterosexual adults who plan to live together but intend never to marry)–doesn’t it honestly seem like the “institution of marriage” and marriage vows have already become increasingly devoid of meaning to a huge swath of the citizenry? And this all happened without the influence of SSM. Haven’t Americans already gone pretty far down the road toward putting marriage “out of business”?

    I don’t like it any more than you do. I think intact nuclear families are critical to a stable society. I think that’s how kids used to observe and learn how men and women valued each other and interacted with each other and kept young children secure. I think two parents –a man and a woman have a better shot at producing healthy well adjusted children and future net- contributors to society. In many ways I admire your zeal to protect the time honored definition of marriage and I understand why you believe you need to do it. I just hope you see that many of your points were more valid 30 years ago than they are now and that’s why many people today don’t really believe SSM is going to change much of anything that has not already caved in on itself already.

    elissa (1f8a0a)

  136. aphrael (e777bc) — 7/2/2014 @ 2:27 pm

    Because one discriminates by earnings, the other discriminates by gender.
    It is permissible to discriminate by earnings, but not by gender.

    askeptic (efcf22)

  137. askeptic – sure, and my argument is that there’s a reasonable argument that “equal protection” requires that the state not discriminate by earnings. Doing so is *not treating people equally*.

    aphrael (e777bc)

  138. Hoagie – if the state-recognized “marriage” is “Holy Matrimony” as defined by the church’s rules on what is moral, and is a religious sacrament rather than a legal contract, then the state’s recognition of marriage is an unconstitutional establishment of religion.

    But the thing is that state-recognized marriage is *distinct from* “Holy Matrimony” and always has been.

    aphrael (e777bc)

  139. 112. To be blunt: when we finally legally married, Spice (f) and I (m) knew it would be highly unlikely that we could have biological children (both of us having medical conditions making highly unlikely for either of us to have, with the best techniques available then, successful fertilization, implantation, growth, and delivery of a healthy baby.) :(

    Should we have been forbidden to marry? …

    htom (412a17) — 7/2/2014 @ 12:04 pm

    Unfortunately you fundamentally misunderstand the historical, legal, and cultural links between marriage and procreation. Most do. If people are going to have children, then marriage was the institution society created within which they were to have them. There was never a requirement that every couple have children. Even back when marriage was governed entirely by canon law. The church permitted annulment if one of the two was incapable of having children. Sure, they couldn’t do sophisticated medical testing back in he Middle Ages. But they were aware of conditions such as impotence.

    The key is “permitted.” The church didn’t require couples get their marriages annulled if they couldn’t have children together. That was never the point of marriage even when it was strictly a religious institution; that they must have children or split up.

    The point was to ensure that people didn’t have children outside of marriage.

    Steve57 (c4c6a6)

  140. Actually, the “50% divorce rate” ranks right alongside the “income 77% of men” when it comes to bogus stats.
    1 out of 2 people do not get divorced, since the average divorced person has been married more than once – see ‘Divorced Statistics of Second Marriages’
    Yes, in any given year, there may be a number of divorces equaling one-half of the marriages performed THAT YEAR, but it doesn’t take into account how many years those divorces had “under their belts”.
    Here’s just a quickee from relatively current media.

    askeptic (efcf22)

  141. Two gay men (A and B) marry two lesbian women (C and D), A&C, B&D, and secretly conduct their private lives as if they were married A&B and C&D. How, in a homosexual relationship forbidding Christian community, is this not immoral? Is it more moral or more immoral if they are non-secretive about their behavior?

    htom (412a17)

  142. Steve57 — not a misunderstanding; the reasoning put forward upthread was that gays shouldn’t be allowed to marry because they can’t procreate.

    htom (412a17)

  143. 134. …I just hope you see that many of your points were more valid 30 years ago than they are now and that’s why many people today don’t really believe SSM is going to change much of anything that has not already caved in on itself already.

    elissa (1f8a0a) — 7/2/2014 @ 3:18 pm

    I would argue that my points remain just as valid today as they would have been 30 years ago. And I suppose my zeal is due to the fact I woke up late to what was happening. Marriage didn’t simply cave in on itself. It’s been subject to a long, slow, incremental assault.

    I don’t know what the first increment was. Perhaps no fault divorce, pushed by people who publicly argued that people shouldn’t have to remain trapped in a bad marriage, but included among them the same feminists who silently believed women shouldn’t be trapped by any marriage at all. SSM is simply the latest, perhaps final, increment.

    Steve57 (c4c6a6)

  144. 141. Steve57 — not a misunderstanding; the reasoning put forward upthread was that gays shouldn’t be allowed to marry because they can’t procreate.
    htom (412a17) — 7/2/2014 @ 3:52 pm

    Gays can procreate. Just not within a same sex relationship. This is why feminists seized on SSM as a means to destroy marriage. If the definition of marriage is changed to include a form that can only procreate outside of marriage(same sex), then that puts society’s ultimate stamp of approval on procreation outside of marriage.

    One might argue that we’ve already gone pretty far down that path already, and one would be right, but feminists seized on SSM as a means to validate having children outside of marriage long before single motherhood became widely accepted.

    Exactly what marriage was created to prevent, thus destroying its entire reason to exist. As an ligation between two adults to provide and are for the children which may result.

    Children have been incrementally pushed fro their former place at center stage when it comes to marriage. SSM shoes them off stage entirely. Marriage becomes entirely unrelated to having and raising children, but instead becomes entirely a matter of the needs, wants, and desires of the adults. And when that happens the needs, wants, and desires of the adults inevitably leads to needing, wanting, and having, something easy to get out of.

    We see this in France, where SSM isn’t yet legal (last I checked), but civil unions are open to straights as well as gays. Immediately straights abandoned marriage. Why? Because getting out of a marriage involves a costly and tie consuming divorce. Getting out of a civil union only involves sending a letter to a municipal office.

    That’s the chief attraction to civil unions. And to making marriage more like those civil unions, which is what we’e been doing here for the past several decades.

    Steve57 (c4c6a6)

  145. France has had Civil-Union since the aftermath of the Revolution.

    askeptic (efcf22)

  146. You guys keep getting it backwards. Men and women do things that make children. Society finds it useful, even necessary, to create a status for the raising of children. Marriage. It even makes it (until very recently, anyway) a precondition to making children. Cause=sex=childen; effect=marriage. It is too burdensome and invasive on privacy and dignity to inquire into a male/female couple’s fertility, in fact the presumption that they are fertile is reasonable in nature and in law, so that is not enacted as an impediment.

    Sex between men and men or between women and women does not produce children. It is more than a presumption, it is a fact of nature. Same sex marriage is neither necessary nor useful under this criterion. They can whoop it up to their heart’s content. With the abolition of laws that were quaintly called “criminal conversation”, no harm no foul.

    But let’s take it further. A man and a woman can move in together, and comport themselves as husband and wife, and they can raise a dozen kids, and the wife can take the husband’s last name, and 99% of society and God too will say they are husband and wife. They will receive the respect of a married couple. They don’t need a piece of paper, or a priest saying magic words. It’s the oldest kind of marriage that is.

    Same sex couples on the other hand, have nothing to show that they are not roommates or friends (with or without benefits) except the piece of paper. If Felix Unger and Oscar Madison claimed they were married, it would be treated as a joke. Same sex couples need the piece of paper. They do not have the tradition; they do not have the societal presumption. The only way they’ll get the respect is by legal grant.

    nk (dbc370)

  147. Mr Stone wrote:

    But as our friend aphrael points out, the tax rates are applied differently, simply based on a person’s income earned.

    Actually, not quite the way that you think. Since progressive taxation is based upon marginal rates, the person making a million bucks a year is still taxed at the same rate as the guy making $50,000 a year, on that first $50,000 of his income. (There are some losses of exemptions and the like which are inflicted upon the top producers, which do change that somewhat.)

    The overtaxed Dana (af9ec3)

  148. Aphrael wrote:

    Hoagie – if the state-recognized “marriage” is “Holy Matrimony” as defined by the church’s rules on what is moral, and is a religious sacrament rather than a legal contract, then the state’s recognition of marriage is an unconstitutional establishment of religion.

    But the thing is that state-recognized marriage is *distinct from* “Holy Matrimony” and always has been.

    In every state in the union, priests and ministers and rabbis, etc, have the legal authority to perform marriages, as long as those marriages are licensed by the state. They are, in effect, agents of the state as much as they are priests of their churches.

    Both the church and the state have vested interests in people being married, but their interests are not the same ones.

    The Catholic Dana (af9ec3)

  149. Well, it had to happen.

    askeptic (efcf22)

  150. The only way they’ll get the respect is by legal grant.

    They may get recognition, nk, but not necessarily respect.

    askeptic (efcf22)

  151. BTW, for capitalized Equal Protection, “innate and immutable trait” is a necessary component. Wealth is neither innate nor immutable. Do you disagree with that criterion, aphrael?

    Sex discrimination is suspect because being a man or a woman is considered an innate and immutable trait, but with the state of medicine these days we might wish to reconsider. Race too, just look at Michael Jackson — a little plastic surgery, a quinidine skin cream, a hair-straightening iron and gel ….

    nk (dbc370)

  152. The Catholic Dana (af9ec3) — 7/2/2014 @ 5:47 pm

    And that, the agent of the state thing, will have to change in the age of SSM.
    Let true agents of the state – Magistrates – perform those civil-unions and divorce church proceedings completely from the affairs of state.
    Render unto Caesar that which is Caesar’s, and Render unto God that which is His.

    askeptic (efcf22)

  153. 150- “and…freak show.”

    askeptic (efcf22)

  154. 144.France has had Civil-Union since the aftermath of the Revolution.
    askeptic

    So what’s that got to do with us?

    The only way they’ll get the respect is by legal grant.

    A contract is a legal grant, nk. Marriage is a religious sacrament. If you guys have no respect for traditional values, the sanctity of the two parent family or Judeo-Christian philosophy that’s just fine but please don’t define a psychosexual mental problem as moral. Everyone knows sodomy and buggery are wrong and to give it some made-up legal status just puts one more reason to why people have little respect for the law any more and adds a phony legal/moral status to that which deserves neither.

    Hoagie (4dfb34)

  155. If you guys have no respect for traditional values, the sanctity of the two parent family or Judeo-Christian philosophy that’s just fine but please don’t define a psychosexual mental problem as moral.

    I don’t know how you interpreted my remarks that way, Hoagie.

    nk (dbc370)

  156. Race too, just look at Michael Jackson — a little plastic surgery, a quinidine skin cream, a hair-straightening iron and gel ….

    Yes, nk. But he was still an African. Just like Chelsea Manning is still a male. So far we can’t change our genes or chromosomes. You can remove a male’s junk, build a fake vagina, add breast implants and remove every hair from his body and do you know what’s left? A mutilated male with psychosexual problems and an X and Y chromosome. Period.

    Hoagie (4dfb34)

  157. My parents had been married for fifty-one years when my father died. I don’t consider my marriage, now dissolved, to be the equal of that of my parents. Not by a long shot. But that it’s not, it’s nobody’s fault but mine.

    nk (dbc370)

  158. htom tried to get silly:

    Two gay men (A and B) marry two lesbian women (C and D), A&C, B&D, and secretly conduct their private lives as if they were married A&B and C&D. How, in a homosexual relationship forbidding Christian community, is this not immoral? Is it more moral or more immoral if they are non-secretive about their behavior?

    It would certainly be sinful from a Christian perspective, but, then again, it would be just as sinful for a heterosexual man and woman to shack up rather than get married.

    Let’s be extremely blunt here: there is no provision at all, in any form of Christianity which holds that the Bible is the revealed Word of God, which allows any form of homosexual activity. People are not required to be Christian, of course, and can decide that the laws of God are nothing about which they care — though I’d suggest that they will face a very rude awakening after it is too late for them to repent — but the laws of God are independent of what people might think about them.

    It seems to me that people are attempting to find some arrangement in which homosexual activity is permissible or moral, because it just seems so unfair that homosexuals shouldn’t have some approved outlet for their sexual desires. It is permissible, under the laws of the United States, because the US chooses not to view consenting acts between adults as criminal.

    But the laws of God simply forbid such. The Catechism of the Catholic Church takes a distinction between persons who are homosexual — a condition — and homosexual sex. A condition is not sinful, any more than being a diabetic is sinful, but yielding to homosexual desires is. Homosexuals are, in effect, called to be celibate. (§2357-2359)

    From a Christian perspective, homosexuals have two choices: to be Christian, and celibate, or to not be Christian. The notion that there is a third choice, to be both Christian and actively homosexual, is a delusion.

    The Bible scholar Dana (af9ec3)

  159. I should have put a smiley after the second paragraph of my comment 150. I was funning the trannies. And possibly the SSM proponents. ;)

    nk (dbc370)

  160. Our Windy City barrister came very near the mark:

    Same sex couples on the other hand, have nothing to show that they are not roommates or friends (with or without benefits) except the piece of paper. If Felix Unger and Oscar Madison claimed they were married, it would be treated as a joke. Same sex couples need the piece of paper. They do not have the tradition; they do not have the societal presumption. The only way they’ll get the respect is by legal grant.

    And that, of course, is a great deal of what they want, but not all of it. If their concerns were just those which were raised ten years ago — hospital visitation, inheritance and the like — such could have been met by the various domestic partnership and civil unions statutes which existed. But those were not enough, because what was far more important was the name of marriage, because the real goal was to push the idea that their relationships were just as good, just as wholesome, and just as normal as heterosexual marriage.

    The very direct Dana (af9ec3)

  161. From a Christian perspective, homosexuals have two choices: to be Christian, and celibate, or to not be Christian. The notion that there is a third choice, to be both Christian and actively homosexual, is a delusion.

    Not so. There is a third choice. Bradley can become Chelsea. I think even Texas allows marriages between transexuals as long as they identify as opposite sex. It’s not an immutable condition anymore. If they cannot afford the sex change, Obamacare will pay for it now. Even without Obamacare, a lot of people put off marriage until they have a little nest egg to start married life with. They can wait and save for the operation. ;)

    nk (dbc370)

  162. if the state cannot restrict legal marriage to non-consanguineous heterosexual couples

    Dana–

    The ban on consanguineous heterosxual marriages reflects the state’s aversion to high-risk pregnancies and the propagation of certain genetic errors. Why would regulation of such inform a debate of marriages where procreation is not at, um, issue? I don’t see how allowing gays to marry would interact with the heterosexual regulation at all.

    Kevin M (b357ee)

  163. In every state in the union, priests and ministers and rabbis, etc, have the legal authority to perform marriages, as long as those marriages are licensed by the state. They are, in effect, agents of the state as much as they are priests of their churches.

    I’ve brought this up before. The moment the religious officiator says “By the power granted me by the state of _______” he has a problem. The state can limit that power however it wants so long as it treats all religions equally.

    For example, the state can say that only county clerks can officiate over marriages — relegating religious ceremonies to being unrelated to the civil institution of “marriage.” Or it could say that any church wishing this power granted must accept all those with a valid marriage license. They SAY that hey won’t do this as they expand the definition of civil marriage, but there is no reason to expect that it won’t happen in the future.

    I note that the Catholics don’t much care what the state says about divorce, and I suspect that they will stop being agents of the state entirely the moment the state starts trying to make them marry people they don’t think should marry.

    That agent of the state thing is going to be a problem.

    Kevin M (b357ee)

  164. From a Christian perspective, homosexuals have two choices: to be Christian, and celibate, or to not be Christian. The notion that there is a third choice, to be both Christian and actively homosexual, is a delusion.

    Or they can start their own denomination of Christianity with different precepts. There are “Christian” churches that do not hold with more basic things.

    Kevin M (b357ee)

  165. Everyone knows sodomy and buggery are wrong.

    Well, no, they don’t. Not even in heterosexual relationships.

    Kevin M (b357ee)

  166. Some churches now do perform same sex marriages. United Methodist and some Anglican have been in the news. Which has led to people trying to redefine Christianity for Christians. To tell us that the Methodists and the Anglicans are real Christians and we’re not.

    nk (dbc370)

  167. The courts are there to strike down unconstitutional laws;
    Despite that authority having been made up by the courts.

    No. I did not say that John Marshall’s articulation of judicial review was made up or not authorized by the Constitution.

    The Founders always assumed that courts would have that power.

    John Marshall made a lot of other stuff up though.

    Patterico (9c670f)

  168. 144. France has had Civil-Union since the aftermath of the Revolution.
    askeptic (efcf22) — 7/2/2014 @ 5:15 pm

    Yes, it was formerly known as living together en concubinage. It wasn’t so muh a civil union as officially recognized cohabitation. Those doing so had some of the same privileges in law as married couples. But there were major drawbacks. For instance, it wasn’t recognized under French inheritance laws. Within the past decade or so they introduced a third category of civil union to accommodate same sex couples which had more of the attributes of marriage, then later abolished concubinage because of the negative connotations of the word. It was only then that straights began abandoning marriage in droves.

    It was to that new category of civil union that I was referring. The old style of concubinage was never an attractive alternative to marriage.

    Steve57 (c4c6a6)

  169. 167. …The Founders always assumed that courts would have that power.

    John Marshall made a lot of other stuff up though.

    Patterico (9c670f) — 7/2/2014 @ 8:22 pm

    In our system of three separate, co-equal branches of government all the branches have that power. The legislative is no more bound by an unconstitutional ruling by the judiciary than the judiciary and executive are bound by an unconstitutional act of Congress.

    We have a system of constitutional supremacy, not judicial supremacy.

    Steve57 (c4c6a6)

  170. polygamy is tacky

    and not conducive to wealth-creation

    plus it’s tacky

    Okay, I know you’re just happyfeet being happyfeet. But if you truly believe that multi-partner marriage is tacky, then are two guys (more so than two women) being hitched together not just tacky but gross too? Since you often use the word “gay” pejoratively, don’t play innocent about what exactly the concept of “gross” means.

    It’s silly for the Right to laud marriage as the means to commitment and fidelity, and to sing the praises of commitment and fidelity, and to deny marriage to the LGBT community, and then to deride that community for promiscuity or a lack of commitment and fidelity.

    It’s even more silly for a variety of liberals who are into touchy-feely, touchy-feely, yet who often promote the ethos of “if it feels good, do it!,” and who believe free expression (certainly of the sexual kind) is noble and beautiful, and who think traditional standards are so fuddy-duddy (including the age-old parameters of marriage), should be so upset that homosexuals can’t access the ritual of fuddy-duddy, or the public sector proclaiming “you two are now committed to one another.”

    Mark (cb6333)

  171. I was unaware that this is a Christian nation.

    Or that morality was dictated by the Pope.

    In my silliness, well, the couples could donate services to each other.

    htom (412a17)

  172. 146. But let’s take it further. A man and a woman can move in together, and comport themselves as husband and wife, and they can raise a dozen kids, and the wife can take the husband’s last name, and 99% of society and God too will say they are husband and wife. They will receive the respect of a married couple. They don’t need a piece of paper, or a priest saying magic words. It’s the oldest kind of marriage that is.

    Whether or not they get any respect is beside the point. Those in common law marriages acquire all the legally enforceable obligations of any other marriage. hey have to go to court to dissolve the relationship. If one walks out and tries to marry someone else, they’re a bigamist. If hubbie runs out, wifie can sue for child support.

    Same sex couples on the other hand, have nothing to show that they are not roommates or friends (with or without benefits) except the piece of paper. If Felix Unger and Oscar Madison claimed they were married, it would be treated as a joke. Same sex couples need the piece of paper. They do not have the tradition; they do not have the societal presumption. The only way they’ll get the respect is by legal grant.
    nk (dbc370) — 7/2/2014 @ 5:35 pm

    That’s what Judge Walker said in his Prop 8 ruling. Hate to break the news to you judge, but they still won’t get the respect. You guys don’t have the moral authority to confer it. Go back and read your earlier paragraph, nk. It may eventually sink in why heterosexual marriage (it is strange to put it that way since from its inception til now there was no other kind) was respected, and it had nothing to do with governmental recognition. It was the sole basis by which society would continue itself. Whatever SSM may be, it has nothing to do with that and can’t offer society the same benefit.

    The marriage you refer to in your earlier paragraph wasn’t a creation of government, but of society. And the institution was created to serve a public purpose. The marriage you refer to in your second paragraph is not a creation of society but of government that is imposed on society and does not serve any discernible public purpose. If it could, society would have created it. It doesn’t matter how much paper you throw a it, government can not make the latter equal to the former.

    Earlier I introduced you to LGBT activist Marsha Gessen. Here’s he link to some of her comments on the purpose of gay marriage.

    http://www.nationalreview.com/corner/381148/state-dept-lgbt-speaker-we-dont-want-gay-marriage-we-want-no-marriage-ian-tuttle

    As much as I’m sure I despise everything she stands for I fear she has a firmer grasp on the reality of the situation than you do.

    Steve57 (c4c6a6)

  173. htom @171, what does Christianity or Judeo-Chrisian morality have to do with the definition of marriage as being only between a man and a woman because procreation is central to its purpose? My Buddhist and Shinto friends in Japan, a country where SSM is widely considered a ridiculous notion, are dying to know.

    Steve57 (c4c6a6)

  174. Because the claim was being advanced that the Bible and the Catholic Church were the basis of a) morality and b) the prohibition of non-heterosexual behavior leading to c) the denial of same-sex marriage. A non-heterosexual couple can arrange to become biological parents in the same way a heterosexual couple can if they are unable to do so “naturally”. At least some of the time. So what does procreation have to do with it?

    “You live as I believe you should live to further my desired society” is what this comes down to, and it sounds like the establishment of religion to me. Some of you obviously have different hearings.

    htom (412a17)

  175. Cut me some slack about Marsha Gessen’s reality, Steve. Her kind have been around forever. How many husbands did the Samaritan woman have? Five or six? I know a guy, a Marine BTW, whose mother and father divorced and remarried three times each to people who were themselves divorced and remarried. He has full siblings, half siblings, full step-siblings, and half step-siblings, step-siblings one and two marriages removed, and his wife, a nice Greek girl from a traditional family, has a chart that looks like the line of successions of the Hapsburgs to keep them all straight. Gessen’s a piker.

    And I don’t believe I said the same thing Walker did. Certainly not leading to his conclusion, anyway.

    nk (dbc370)

  176. Steve57 (c4c6a6) — 7/2/2014 @ 8:33 pm

    Steve, I think you’ll find that in the period after the overthrow of the monarchy (and aristocracy) and prior to Napoleon crowning himself Emperor, that the Church was barred from conducting marriage ceremonies, that they had to be conducted before a Magistrate at the Town Hall.

    askeptic (efcf22)

  177. 167. No. I did not say that John Marshall’s articulation of judicial review was made up or not authorized by the Constitution.

    The Founders always assumed that courts would have that power.

    John Marshall made a lot of other stuff up though.
    Patterico (9c670f)

    Yet many declare the Founders assumed no such thing. (Hamilton certainly seemed to think so in The Federalist.)
    And it is not explicitly stated in the Constitution – at least not the way people who disparage judicial review seem to want it explicitly stated.
    And since you expressed disdain for his general behavior in Marbury v Madison, there was an appearance of an incompatibility.

    Sam (e8f1ad)

  178. 174. Because the claim was being advanced that the Bible and the Catholic Church were the basis of a) morality and b) the prohibition of non-heterosexual behavior leading to c) the denial of same-sex marriage.

    Yes, but I’m suggesting that a simple overview of the developed world would indicate that Judeo-Christian concepts of morality are entirely unrelated to the universal concept of marriage only being between a man and a woman. Rather it’s because of the procreative potential of that combination and only that combination.

    A non-heterosexual couple can arrange to become biological parents in the same way a heterosexual couple can if they are unable to do so “naturally”. At least some of the time. So what does procreation have to do with it?

    htom (412a17) — 7/2/2014 @ 10:20 pm

    What does procreation have to do with it? Everything.

    You’re getting pretty far afield here. Marriage wasn’t created at time when people could even fathom the idea of the human race being cultured in a petri dish. Perhaps one day (not yet, but someday) that will be a practical way of propagating the species.

    But so what?

    As I mentioned earlier about the judge’s basic malfunction when it came to the purpose of marriage,…

    Even assuming the state has a legitimate interest in promoting procreation,…

    Interesting formulation. What is this guy, 150 years old and forgot what it was like to be in high school?

    The procreating part promotes itself. There’s no need for the state to advertise the activity on Superbowl Sunday, as if no one knows about it.

    It used to be that states had an interest not in promoting procreation, but in limiting and channeling the urge.

    …having too many babies is the problem marriage was created to prevent. No making more; that’s never been a problem. People figured out how to make more babies than they could handle before biology was even a word.

    There are certain biological realities that have a wider social impact and any advances we make in the laboratory concerning fertility are entirely irrelevant. But these wider social impacts only concern heterosexual couplings.

    Marriage addresses those wider social impacts. It’s not about making lots of babies which, lord knows, you could have happen in any high school if only the teachers confined themselves to the faulty lounge so nature could run its course.

    Steve57 (c4c6a6)

  179. Steve57 (c4c6a6) — 7/2/2014 @ 8:33 pm

    Steve, I think you’ll find that in the period after the overthrow of the monarchy (and aristocracy) and prior to Napoleon crowning himself Emperor, that the Church was barred from conducting marriage ceremonies, that they had to be conducted before a Magistrate at the Town Hall.
    askeptic (efcf22) — 7/2/2014 @ 10:59 pm

    I believe you.

    Steve57 (c4c6a6)

  180. The nk who knows better wrote:

    Not so. There is a third choice. Bradley can become Chelsea. I think even Texas allows marriages between transexuals as long as they identify as opposite sex. It’s not an immutable condition anymore.

    If a male named Bradley decided that he was really a female, and wanted to be called Chelsea — something I’ve heard about recently — he might be able to find a quack doctor who would castrate him and try to create an artificial vagina for him, and get fake boobs pasted under his weak chest, but he will still have XY chromosomes, he will still have had all of his previous life and experiences as a male, and he will still be a male, albeit a castrated one. He will never be female, because that really is immutable, always has been, and always will be.

    But though he will always be male, he will never have been a man.

    The biologist Dana (3e4784)

  181. I’m just saying that if one guy meets another guy and wants to marry him, he does not need to change the law of marriage. He can change himself to a herself. His sexual orientation may not be something he can do anything about, but his gender assignment is. He can remove his legal disability and marry the man of his dreams. The decision is entirely his. It is not oppression by the state when he can conform to the requirements of the law but refuses to do so.

    nk (dbc370)

  182. > Same sex couples on the other hand, have nothing to show that they are not roommates or friends (with or without benefits) except the piece of paper. If Felix Unger and Oscar Madison claimed they were married, it would be treated as a joke. Same sex couples need the piece of paper. They do not have the tradition; they do not have the societal presumption. The only way they’ll get the respect is by legal grant.

    I have never bothered to get that legal grant, but my friends, family, and coworker all give my marriage the same respect they give to opposite-sex marriages.

    I don’t think the legal grant is required for the respect of one’s community.

    aphrael (e777bc)

  183. I’m happy for your situation, aphrael, and that would be the Millenium for all same-sex couples. Which brings us to our host’s point that same-sex marriage is a societal and political question, to be decided by the legislature or by plebiscite or by popular consensus, and not a juridical matter to be decided by a judge.

    nk (dbc370)

  184. To tell us that the Methodists and the Anglicans are real Christians and we’re not.

    Or vice-versa, I suppose. Then there’s the Unitarians, or Jehovah’s Witnesses who have other beliefs the mainstream doesn’t agree with. And everyone agrees the Mormons aren’t Christians, except the Mormons.

    I don’t really have a dog in this fight, except to look askance at statements that attribute views to all Christians, when the person really means “all people I consider Christians.”

    Kevin M (b357ee)

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