Patterico's Pontifications

9/7/2005

Dafydd: State Senate to People: Drop Dead!

Filed under: Court Decisions,Law,Political Correctness — Dafydd @ 6:11 am



This post is by Dafydd, not Patterico; I have no idea where Patterico stands on Proposition 22. [Patterico says: read the UPDATE below and find out!]

[And yet another update below, as of 7 September 2005]

This vote is simply breathtaking in its arrogance.

California Senate approves bill allowing gay marriage
By Steve Lawrence, Associated Press Writer
Thursday, September 1, 2005

Handing gay rights advocates a major victory, the California Senate approved legislation Thursday that would legalize same-sex marriages in the nation’s most populous state.

The 21-15 vote made the Senate the first legislative chamber in the country to approve a gay marriage bill. It sets the stage for a showdown in the state Assembly, which narrowly rejected a gay marriage bill in June.

What truly separates this apart from other issues is that in 2000, the people of the state of California voted overwhelmingly for Proposition 22, the California Defense of Marriage Act, which flatly and unequivocally bans same-sex marriage: “Only marriage between a man and a woman is valid or recognized in California.” You will not see a single word about this in the SFGate story linked above… it was all a dream; it never happened.

In February of this year, a San Francisco judge struck down the law enacted by Proposition 22:

At issue were a 1977 law that defined marriage as “a personal relation arising out of a civil contract between a man and a woman,” and a voter-approved measure in 2000 that amended the law to say more explicitly: “Only marriage between a man and a woman is valid or recognized in California.”

The state maintained that tradition dictates that marriage should be limited to opposite-sex couples. Attorney General Bill Lockyer also cited the state’s domestic-partners law as evidence that California does not discriminate against gays.

But Kramer rejected that argument, citing Brown v. Board of Education — the landmark U.S. Supreme Court decision that struck down segregated schools.

“The idea that marriage-like rights without marriage is adequate smacks of a concept long rejected by the courts — separate but equal,” the judge wrote.

But a ruling by a single superior-court judge is not sufficient to toss out a law in California; you need an appellate-court ruling to that effect, and the whole shebang is currently on the docket of the California Supreme Court, which is expected to issue a ruling sometime next year. This is important: note this. As of right now, the California Defense of Marriage Act remains the law, not having been struck down by the appellate courts.

Kramer ruled that “No rational purpose exists for limiting marriage in this state to opposite-sex partners,” which has been the law in Western civilization for the last several thousand years. What he meant, of course, was that since he himself considered same-sex marriage fundamentally rational, that must mean that any argument against it is — by definition — irrational.

But surely a judge’s test for rationality of a law is whether there are any rational arguments that can be made for it — not whether the judge himself finds those rational arguments convincing. And indeed, there are many rational arguments to be made for restricting marriage to a union between a single man and a single woman. Let’s start with the most basic one: it is in society’s interest that children be raised with both a (male) father and a (female) mother; therefore, we encourage anything that tends to lead in that direction, such as traditional marriage, and discourage that which denies it, such as same-sex marriage.

Here are a few others:

  • We believe that traditional marriage empowers women and civilizes men.
  • If laws against two men marrying are held to be unconstitutional, and there is thus a “constitutional right” for any two adults to marry, then what is the argument against allowing any three adults to marry?
  • Cultures have the right to define themselves by enacting values into law, so long as there is some secular reason for such values; one such secular reason for rejecting same-sex marriage is that men and women are biologically distinct and complimentary, and that a union between a man and a woman is required to propagate the species… thus, such unions should be encouraged in the law and alternatives that do not serve to propagate the species (and civilize the young; see first argument supra) should be discouraged in the law.

As a judge, you do not need to accept these arguments; that is not your job… the people of the state of California already made that decision. You simply must admit that they are rational, secular reasons to support traditional marriage… and that means the people have the right to so vote. Kramer’s decision was judicial activism, pure and unadorned.

Back in August of 2004, the California Supreme Court struck down the sham “marriages” of same-sex couples ordered by Gavin Newsom, the mayor of San Francisco. But in cowardly fashion, despite the obvious fact that the court must have secretly been holding that the laws banning same-sex marriage were constitutional — else why not simply strike them down and have done with it? Newsom had, in fact, raised the supposed unconstitutionality as his primary argument — the court refused to come out and simply say so, instead explicitly denying that they were making any ruling at all on the constitutionality of the 1977 legislative definition of marriage to include only opposite-sex couples and the resounding, 61.4% vote on Proposition 22 to do the same.

What they did hold, however, was that absent an appellate-court ruling striking down a law, “a local executive official” cannot simply decide on his own that it’s unconstitutional and refuse to obey it.

We assumed jurisdiction in these original writ proceedings to address an important but relatively narrow legal issue — whether a local executive official who is charged with the ministerial duty of enforcing a state statute exceeds his or her authority when, without any court having determined that the statute is unconstitutional, the official deliberately declines to enforce the statute because he or she determines or is of the opinion that the statute is unconstitutional.

Note, the court, in its zeal to supply no guidance whatsoever to anyone anywhere in the state of California as to the law, even restricted its ruling to local executive officials. They wouldn’t even go out on a limb to say that state or local legislative officials also had to follow the law. Just mayors and city councilmen.

And now we have exactly that nightmare situation: the state senate has decided, on its own, that the ban on same-sex marriage is unconstitutional… and therefore, they needn’t obey the express will of the people who enacted Proposition 22 by a margin wide enough to have passed as a state constitutional amendment — thus putting it beyond the reach even of the state supreme court — if only the drafters hadn’t chickened out and offered it only as an amendment to the State Family Code.

The state assembly has already succeeded in attaching it to an unrelated bill (despite itself having voted against the bill earlier!), so it will probably pass there, too. And it will land on the desk of Governor Schwarzenegger… whose position on same-sex marriage is not easy to fathom: he seems to be one of those who opposes SSM itself but supports civil unions that are the same in all but name; but given the reality of a bill on his desk and Schwarzenegger’s lack of any firm moral position on SSM, there is an excellent chance he will sign the bill to curry favor with the legislature, in order to gain support for his economic package.

According to Article II, Section 10c of the state constitution, the legislature can only overturn initiatives if the voters subsequently vote in favor of overturning them:

CALIFORNIA CONSTITUTION
ARTICLE 2 VOTING, INITIATIVE AND REFERENDUM, AND RECALL

SEC. 10. (c) The Legislature may amend or repeal referendum statutes. It
may amend or repeal an initiative statute by another statute that
becomes effective only when approved by the electors
unless the
initiative statute permits amendment or repeal without their
approval.

Although it’s possible that the various state initiatives banning same-sex marriage that have already qualified for circulation will all get less than the 60% needed to amend the constitution, there simply is no way that 50% + 1 of the voters will approve an initiative recognizing same-sex marriage; support for traditional marriage is about as strong now (or perhaps stronger, after Newsom’s defiance and the legislature’s colossal arrogance) as it was five years ago.

A legislature dismissive enough of the will of the people to enact such a law in the first place, flatly contradicting the Defense of Marriage Act, will surely be impatient with that inconvenient constitutional provision. They will demand local officials begin issuing marriage licenses to same-sex couples immediately the bill is signed by the Governator. Therefore, this will all end up in court.

So it all boils down to two questions: first, is there a constitutional right for any two or three or group of adults who “love each other” to have their unions recognized by the state as marriages?

And even more fundamentally, who rules the state of California — the legislature, or the express will of the people themselves, as the constitution explicitly states? Absent a court ruling (finally sustained) striking down a law enacted by a vote of the people, can the legislature simply brush aside initiatives it doesn’t like?

Can the politicos tell the voters to drop dead?

UPDATE BY PATTERICO: I voted against Proposition 22. But I think this post raises an interesting question in the abstract: is it ever proper for a legislature to pass a law that contravenes an initiative? I’d have to think about that one; a knee-jerk “no” might open oneself up to all sorts of persuasive counter-hypotheticals. What do you folks think?

UPDATE x2 BY PATTERICO: Duh. I should have read the whole post rather than just skimming it (well, it was kinda long). Dafydd provides the authority in the post that what the legislature is doing is just flat-out illegal — unless, of course, they are simply planning on submitting the bill to the voters for approval. If they are just planning on ramming through legislation without submitting it for a vote by the people of the state of California, then I obviously don’t support that — even if I am sympathetic to the policy that they are trying to enact.

UPDATE x3 BY DAFYDD: How now, brown cow? Anybody want to cover my bet that the legislature has no intention in the world of submitting their bill to the people for ratification, but intend rather to get some pet judge to throw out Proposition 22 — and tell the people to just drop dead.

If they intended to abide by the overwhelming vote of the people, they wouldn’t have passed a bill to make same-sex marriage legal; they would have passed a bill to put it on the ballot for us to vote upon. But that’s not what they did, is it?

It’s all right, though. I’m sure it’s for our own good.

69 Responses to “Dafydd: State Senate to People: Drop Dead!”

  1. Just spreading word of a new CA politics blog at http://caobserver.blogspot.com from a Capitol reporter. Take a look.

    Shane Goldmacher (79c329)

  2. “who rules the state of California — the legislature, or the express will of the people themselves”
    You need to ASK ? I lived in California for most of my life (I am 53). Lived all over the state. I lived in Galt, California during the recall. I was whole heartedly behind the recall. Many at that time saw it as I did, a shot across the bow of a run-amuk legislature.
    It didn’t take long for me to realize that they were going to dig in their heels. I got tired of having their collective middle finger shoved in my face so I took my money and my life elsewhere.
    I love California. But as long as the socialists run it, you can keep it.

    Marv (e05868)

  3. 1. Representative democracy is an oxymoron. 2. Marriage is a good thing. 3. Why not let them marry? 4. It will probably be mostly women doing it, anyway. 5. Again, why not let them marry, what’s the problem? 6. I have no dog in this fight — I am an old married man with a wife and child and no wish to have it otherwise. 7. They are human beings who deserve love and happiness wherever they can find it. 8. I still do not know what a “heuristic” is. 9. What’s the problem with same-sex marriage?

    nk (e116f8)

  4. Typical democrats to strike while the country is occupied with the plight of the hurricane victims. Hopefully, the Cal House can shoot it down.

    bureaucrat (825e78)

  5. Dafydd,

    Where do you get this notion that a law struck down by a state judge is still valid until an appellate court has ruled on it? I was aware of no such rule.

    Patterico (756436)

  6. Dafydd–

    Which would be harder to accept: this law, should it survive the inevitible referendum, or a CA Supreme Court ruling establishing a gay marriage “right”?

    It may be arrogant of the legislature to overturn Prop 22 (a statute), but it is at least a democratic process that can be fought. Further, should the referendum reverse it again, the likelihood of a CA Supreme Court action will decrease.

    We need this to be fought out in the legislature, not the courts. Prop 22 was 5 years ago and attitudes may have shifted. Should the Assembly go along, Arnold signs it, and the referendum fails to undo it, would you oppose the result as undemocratic, as in Roe? If the referendum suceeds, a Supreme Court action would be suicidal for retention and the’d have to know it.

    This is good news for BOTH sides.

    Kevin Murphy (6a7945)

  7. Patterico:

    Well, maybe it’s just this case. But Kramer’s decision has “TENTATIVE DECISION” typed at the bottom of every page, and evidently the state supreme court has to affirm it.

    At least, the Institute of Governmental Studies at UC Berkeley reports that is the case; scroll down to the header 2005 under California Developments.

    [Kramer’s] ruling is a “tentative decision,” and must be affirmed in the appellate process before it is implemented. A final decision by the California Supreme Court is expected sometime in 2006. On May 27, 2005, Attorney General Bill Lockyer formally appealed Kramer’s decision.

    By the way, I just read the decision, and it’s a miracle of sophistry. He finds that the restriction of marriage to opposite-sex couples violates both the rational-basis standard and also the strict-scrutiny standard (just to be safe).

    On the first, he ponders each and every argument for the restriction that he can think of… which consists of precisely three:

    1) We’ve always done it that way;

    2) California has granted virtually all the rights of marriage to civil unions anyway;

    3) The legislature clearly wanted it that way.

    First, may I say that Judge Kramer has an appalling paucity of imagination. I can think of six or seven rational reasons that he never thought about. (He uses number 2 above as an argument in favor of same-sex marriage… his reasoning is that since we’ve already given nearly all the rights of marriage to same-sex couples anyway, obviously there can’t be a rational reason not to give them the rest. This is an example of his “reasoning.”)

    For example, he never considers this argument: men and women are different; they think differently, they react differently to the same stimuli, they bring different modes of perception to the same problem. In particular, it often takes a man to teach a boy not to abuse his physical power and a woman to teach a girl to find her own way of being strong.

    Nearly all specialists in child development say that ideally, children need both a male father and a female mother to properly develop. Many studies show the danger of fatherless households, and there has been no convincing evidence (I know, I’ve spent literally years looking for it) that a two-woman household avoids the problems of fatherlessness. Additionally, opposite-sex couples tend to stay together longer than same-sex couples (many studies on this), even when they are not married.

    It is completely rational for society to encourage families that might in the future raise children — whether as biological parents or via adoption — to be opposite-sex couples, rather than same-sex couples.

    Another rational argument: most men and women agree that being married civilizes men. Here, let me turn the keyboard over to Sachi, my wife:

    My co-worker, a single man, never matches his steps when he walks with me. A married man would have noticed that I was way behind him and slowed down. When bunch of my coworkers went to a restaurant, he went to the bar and ordered himself a drink, without asking if I wanted one. A married man would have asked if I wanted a drink too. A married man is not a mind reader, he was just been trained to notice these things. Because the first ten times he made mistakes, his wife let him have it.

    Sachi brings up the obvious; but what she writes is deeper and broader than the simple examples she gives. A man married to a woman calls home when he’s going to be late. A man married to a woman learns to do household chores, to be thoughtful, and especially if he has children, to think of the emotional needs of others first.

    But more — he becomes home-centered, not looking for pleasure and excitement outside the marriage but within. There are obviously men who are so uncivilized, not even marriage to a woman can reform them; but an institution is not defined by the exceptions, rather by the norm. I know that Kramer doesn’t think much of history or culture, but our own is replete with examples on both sides… practically the entire genre of country-western music is a long paean to domesticity, a fight against domesticity, a longing for domesticity, and despair when domesticity goes walkin’ out the door.

    This is simply not the norm in gay-male “households,” and I have had an unusually large number of gay male friends. For a long time, Sachi’s best friend was a gay man in a “long-term relationship” with another man; but this relationship included casual sex with strangers at parties and bathhouses.

    Most men are hardwired for sex. Among our closest animal relatives, the chimpanzees and gorillas, the norm is one alpha male with a harem, and a few male hangers-on hoping for some “backdoor” sex with females when the alpha is otherwise occupied. It’s biological: one man can impregnate any number of women; perpetual monogamy is strictly a social phenomenon… one that the Left seems determined to destroy.

    (Arab Moslems seem fascinated by this same polygamous culture; Mohammed himself argues that a man should have four wives — which is as much as saying no wives at all, not as Westerners think of them.)

    It takes a woman, whose biological and social imperative is usually to capture and hold one man, a man who will love and protect her and help her raise the kids, to civilize and domesticate the man. Two men just don’t cut it. Of course there are exceptions; but society has to define itself by rules that bet with the odds, not go all in on a gut-shot straight draw.

    What does this “civilizing” mean? Among other things, a huge percent of violence is committed by rootless men who are disconnected from society; and men who see themselves as part of the community — and with wives and children to support — are more assiduous in finding useful employment, working hard, and keeping out of trouble.

    Patterico, you’re a prosecutor, and you know well that an enormous amount of the violence in our society is perpetrated by a small percent of the population, people who live a criminal and violent lifestyle. If many more men were to avoid the civilizing influence of marriage to a woman and the concommitent meshing with society that produces, we will have that many more rootless, violent drifters with no attachment to society — hence, at the edges, many more homicides, assaults, robberies, and rapes. (I believe this is exactly what happened to cause the masssive upsurge of violence and mindless rebellion in the 1960s.)

    It is a rational conclusion that sanctioning same-sex marriage will lead to more same-sex marriage, and ultimately to the diminishment of the special nature of marriage altogether. You don’t have to buy it; you only have to admit it is rational.

    If marriage loses its special nature, then fewer and fewer heterosexuals will bother getting married, hence more will remain outside the civilizing influence.

    That, too, is a rational conclusion. And the people of the state of California have the right to draw that conclusion and to enforce, therefore, the special nature of the union of male and female that is and has always been marriage, the basis of our Western culture. Even if people in San Francisco are offended.

    In fact, I would say each of these relates to the very survival of our culture itself, the culture that produced the very concept of liberty that people now twist to argue for enforced celebration of their outré lifestyles. That sounds like a compelling state interest to me, even if Judge Kramer can’t fathom why it might be important to maintain the very core of a civilization.

    His decision is fundamentally dishonest. It does nothing but tilt at strawmen of his own creation, studiously ignoring the real arguments in favor of ones set up for the sole purpose of knocking them down. Kramer knew how he was going to decide long before he heard the first word of evidence, and he only listened long enough to get the talking points for his fatuous opinion.

    He talks about the “right” of marriage being fundamental; if so, then that itself proves the definition of marriage is a compelling state interest. His opinion could equally well be applied, every line of it, to a decision to throw open the doors of matrimony to any group of males and females, to consanguinous marriages, or to term-limited marriages with a built-in expiration date.

    I support the right of people to love each other in private; I do not support the demand that the state loudly declare that any old hookup is as good as marriage and must be treated as such, regardless of reality.

    I do support the sacred right of a society to define itself. In 1865 and 1868, we defined our society around the axiom that there was no essential difference between black and white, that there was only one race of people — the human race. But we have never, ever, ever defined outselves around the demonstrably false supposition that there is no essential difference between male and female, for all that Kramer tries to pretend that we have done just that.

    All right; I’m done. Sorry I went on so long.

    Dafydd

    Dafydd (f8a7be)

  8. Patterico:

    I used to support civil unions; alas, for the very reason I mentioned above — Kramer uses the existence of civil unions to rule that same-sex marriage must be allowed as well — I now oppose them.

    Yet another example of people pushing such a radical agenda that people who would ordinarily support a less radical version are afraid to do so. It’s the “give ’em a milimeter and they take a lightyear” dilemma.

    Dafydd

    Dafydd (f8a7be)

  9. I have no problem with gay marriage. At the same time, I’d prefer for changes to take place through the legislative process and not the judicial. So I don’t like the judge’s decision. The legislature’s is a different issue, and poses that interesting question that you discuss in the post and that I mention in the update: should a legislature ever go against the expressed will of the majority? Arguably, at times, yes.

    Patterico (756436)

  10. Dafydd,

    The debate over gay marriage requires a closer look at what it is exactly that we are debating admitting gays to.

    That in its current state being an agreement between a man and a woman to join together, through sickness and in health, till death do them part, right?

    But no – plenty of people are writing vows along the lines of “for so long as the feeling is still there”, while others dispense with vows altogether and go straight to a justice of the peace for a rubber stamp.

    And then there’s the whole question of roles, i.e. what role should a man and a woman each play in a marriage? Traditionally yes women “root” men, but women are nowadays caught between the empowerment of the women’s right movement (an unquestionable good, but whose ripples are reaching all sorts of unexpected areas), and the necessity of providing additional income due to today’s ridiculous tax levels on the one hand vs the call to be a home maker and nurturer on the other, a conflict that can leave a lot of women wondering “ok, what do I do now?” once they get back from the honeymoon.

    Let’s face it – men in their traditional marrital role are a bit clueless. We’ve always looked to the women to more or less define “home”, but nowadays for the reasons I mentioned above women are often too busy struggling with other factors to slot into the role of home maker as seamlessly as they once did, which raises the question – is marriage in the traditional sense still viable on a wide scale?

    As for the child bearing/rearing function – I agree it’s a sacred function however I think it is threatened far more by the workings of the divorce courts than by the prospect of same sex parents – and I’m not saying that lightly; divorce courts encourage the destruction of marriage without requiring so much as a 10 minute “time out” to think about counseling or other reconciliation efforts and practice sexism as a matter of course in their awards of custody, alimony, division of property etc – oddly enough a same sex couple fares better in these circumstances, lacking the obvious targets for favoritism and persecution so handily available in a hetero marriage.

    Bottom line, if marriage is so special, why do we only start pressing for legal enshrinement when it comes to the question of gays? I think the answer is that we’re not (as a society – I am not questioning your earnesty), as serious about marriage as we like to believe, and it’s only when the whole institution is about to fall off the edge of proverbial cliff that we suddenly give a collective gasp of alarm.

    Let’s say we’re able to lock this down with a mountain of laws, amendments bylaws and etc that not even the slipperiest politico can shift – does anyone think it will lead to a serious look at what we’ve fought so hard to protect? No – it won’t. Sad, but in general everyone will just go back to sleep with hazy images of marriage being “saved” when in fact it’s been anything but.

    Personally I think we should collectively take this as an opportunity to take a hard look at what marriage actually has come to be in the present day, what we want it to become, and how to get there.

    Scott (57c0cc)

  11. Patterico:

    The legislature’s is a different issue, and poses that interesting question that you discuss in the post and that I mention in the update: should a legislature ever go against the expressed will of the majority? Arguably, at times, yes.

    Yes, but it should never violate the law, which it has just done unless the judge’s wacky ruling is ultimately upheld – the odds of which I put somewhere between slim and none.

    Xrlq (428dfd)

  12. 1) I don’t know if the legislature is ignoring the law by passing this bill. Wouldn’t the statute just have to go for a statewide referendum then? This seems like the equivalent of the legislature proposing a ballot proposition.

    2) The problem is over the exact meaning of Prop. 22, which was passed in the wake of Hawaii’s legalization of same-sex marriage. While some of the language used to argue for the initiative revolved around the sanctity and sacredness of marriage, other language is specifically focused on preventing California from recognizing decisions by out-of-state courts which alter marriage. See here. The courts cannot interpret the statute either way until there is a proper challenge, because California does not allow advisory opinions. Gavin Newsome’s little show would not present the issue directly, so we are still left with what this ballot measure actually meant.

    The language of the initiative is consistent with either reading: “Only marriage between a man and a woman is valid or recognized in California” could be read to be merely descriptive. The use of “is” suggests the present tense, and the measure does not define “marriage,” but only describes what kind will be “valid or recognized” in the state, as if the source of a challenge would come from outside the state. At the very least, the language is ambiguous, and a court may then look to what the voters were told when the initiative passed (not my favored view of interpretation, but a definite possibility). This could lead to the anomalous result of having legalized same-sex marriage in California, but not recognizing out-of-state same-sex marriages because of Prop. 22, but that raises complications that perhaps others could discuss.

    So the question is whether Prop. 22 should be read for all it might be worth (banning all same-sex marriage forever) or the least it might be worth (protecting against out of state decisions). This is an interesting legal question for the courts, and so I don’t think the legislature is plainly violating the law.

    Matto Ichiban (cd9a4c)

  13. Three problems with your theory, Matto. First, the Legislature is not putting this to a vote, or even admitting that it needs to. Instead, it insults voters’ intelligence by claming it doesn’t have to. Second, there is no legitimate debate over the scope of Prop 22. If “only a marriage between a man and a woman is valid or recognized in California,” then dammit, only a marriage between a man and a woman is valid or recognized in California. Period, end of story. Third, even if there were any rational basis for implying a territorial restriction that isn’t there, the Court of Appeal has ruled on the issue and held unanimously that Prop 22 applies to in-state and out-of-state unions alike.

    Other than that, your analysis is 100% correct.

    Xrlq (5ffe06)

  14. […] More from Patterico’s Pontifications here. posted by: The Editors @ 10:03 am September 2, 2005 […]

    The Unalienable Right » CA legislature ignores voters on same-sex marriage (7a057a)

  15. First, I have no idea what the legislature is doing, or how it gets things on the ballot if it wants to. Can’t this be a possible course of action though?

    Second, you make no argument about the language of the measure that I didn’t address above, and did nothing to address what was actually told to the voters at the time, so I won’t repeat myself.

    Third, the case you cited did seem to think that Prop. 22 applied to in-state marriages as well as out of state, but it wasn’t actually deciding that issue in the case. Rather, it was deciding whether domestic partner legislation was covered by the initiative. If you don’t think that this is a big hole that another court can walk through, then you are being dishonest.

    Xrlq, I never claimed to be 100% right on whether the initiative applies, but I do claim that what the legislature is doing is legally defensible, which I think I have proved.

    Matto Ichiban (cd9a4c)

  16. FWIW, I don’t think you need 60% to pass a constitutional amendment. You only need 50%+1. But the item has to be proposed to the voters as a constitutional amendment as opposed to an initiative statute.

    Joel B. (568776)

  17. I wrote a lengthy response to the Rational Basis legal argument over at my own blog, the Debate Link.

    I’d love to hear your comments.

    David Schraub (6279e2)

  18. Matto, I don’t know the procedure either, but it’s plain as day that Leno did not intend for his bill to be voted on by the electorate, else it would have include a section to amend or repeal Section 308.5 rather than attempting to “interpret” it out of existence. And no, you haven’t addressed the fact that black means black, white means white, “valid or recognized” means “valid or recognized,” and none of these definitions magically change simply because a state line isn’t crossed. Simply put, while reasonable minds can differ as to the wisdom or even the constitutionality of Section 308.5, there is no non-frivolous argument that it allows California to recognize same-sex marriages as valid, whether they are solemnized here, in Nevada, in Canada, on Mars, or anywhere else.

    Third, the case you cited did seem to think that Prop. 22 applied to in-state marriages as well as out of state, but it wasn’t actually deciding that issue in the case.

    That’s because it wasn’t a genuine issue. If it were, it would have been front and center in that case, and if your interpretation had been adopted, it would have mooted the issue entirely.

    Rather, it was deciding whether domestic partner legislation was covered by the initiative.

    More precisely, it was deciding whether in-state domestic partner legislation violated Prop 22 by creating in-state gay marriage under another name. That wouldn’t have been an issue if Prop 22 allowed the Legislature to create in-state gay marriage, as you claim.

    Xrlq (ffb240)

  19. Dafydd,

    Where do you get the idea that it takes a 60% vote to amend the California constitution? It only takes a majority vote.

    CALIFORNIA CONSTITUTION
    ARTICLE 18 AMENDING AND REVISING THE CONSTITUTION

    SEC. 3. The electors may amend the Constitution by initiative.

    CALIFORNIA CONSTITUTION
    ARTICLE 18 AMENDING AND REVISING THE CONSTITUTION

    SEC. 4. A proposed amendment or revision shall be submitted to the
    electors and if approved by a majority of votes thereon takes effect
    the day after the election unless the measure provides otherwise. If
    provisions of 2 or more measures approved at the same election
    conflict, those of the measure receiving the highest affirmative vote
    shall prevail.

    Ben Pugh (1527b3)

  20. I guess you’ve already been over this once with BoiFromTroy. Laws have a historical context, and sometimes a fair construction might demand reading the law in light of that context. If the information given to voters was that Prop. 22 would simply protect California from other states’ marriage laws, but the text suggests another, broader meaning, then there is a problem. If the statute was on the ballot with a deliberately misleading explanation (which this seems to be), it should not be a valid law. On the other hand, if the voters expected on interpretation, and the language of the statute is not inconsistent with that reading, why could a court not interpret the statute accordingly?

    As for Knight case, an interpretation of Prop. 22 applying to in-state marriages is not necessary for the opinion: once the court interprets the word “marriage” to exclude domestic partnerships, it need not determine its scope. The court discusses the history, including the ballot arguments, as further evidence that it is interpreting “marriage,” and not the in-state/out-of-state distinction. Even further, the court entertains the theory that Prop. 22 was meant to simply maintain the status quo against out of state marriages: “These ballot materials directly support the interpretation that Proposition 22 was intended solely to preserve the status of marriage in California for persons of the opposite sex by preventing the recognition of marriages from other jurisdictions if those {Slip Opn. Page 17} marriages are between homosexuals.”

    In any event, the court was hardly clear on this point, so there is plenty of ambiguity.

    Matto Ichiban (cd9a4c)

  21. I think the Democratic majority in the California Senate has done something that will be very damaging to their party on a national level and to our social institutions. Our society and I suspect the gay community as well is not ready for gay marriage. While divorce is a major cause of family instability (and we should take a look at changing no-fault divorce laws), I think that allowing gay marriage will only further weaken the traditional family structure. I hope that there will be enough of an outcry in Middle America to force moderate Democrats in Congress to support a constitutional amendment banning gay marriage. While it is a long shot, I think that a federal consitutional amendment is the only way to stop the radical social progressives determined to force gay marriage down our throats.

    Right Democrat (0f4734)

  22. I guess you’ve already been over this once with BoiFromTroy. Laws have a historical context, and sometimes a fair construction might demand reading the law in light of that context.

    If the statute is worded vaguely or ambiguously, sure. But there’s nothing ambiguous about Prop 22.

    If the information given to voters was that Prop. 22 would simply protect California from other states’ marriage laws, but the text suggests another, broader meaning, then there is a problem. If the statute was on the ballot with a deliberately misleading explanation (which this seems to be), it should not be a valid law.

    If that were the rule, just about every ballot initiative that’s ever been passed would be invalidated, not to mention a lot of laws passed by legislatures, as well. In any event, it’s not as though voters weren’t exposed to the plain text of Prop 22, or to the possibility it might restrict the California Legislature’s ability to enact gay marriage laws of its own. I think you can count on one hand the total number of people who supported Prop 22 because they didn’t want the state to recognize out of state marriages, yet would have opposed it if they knew it also prohibits the state from enacting such marriages on its own.

    This limitation ensures that California will not legitimize or recognize same-sex marriages from other jurisdictions, as it otherwise would be required to do pursuant to section 308, and that California will not permit same-sex partners to validly marry within the state.

    As for Knight case, an interpretation of Prop. 22 applying to in-state marriages is not necessary for the opinion: once the court interprets the word “marriage” to exclude domestic partnerships, it need not determine its scope.

    You’re looking at the issue backwards. It doesn’t make sense to go into detail about what is or isn’t a marriage if the law doesn’t apply at all. In that case, all there is to do is to acknolwedge that the law doesn’t apply, and drop it right there.

    In any event, the court was hardly clear on this point, so there is plenty of ambiguity.

    There’s nothing “unclear” about this:

    The plain language of Proposition 22 and its initiative statute, section 308.5, reaffirms the definition of marriage in section 300, by stating that only marriage between a man and a woman shall be valid and recognized in California. This limitation ensures that California will not legitimize or recognize same-sex marriages from other jurisdictions, as it otherwise would be required to do pursuant to section 308, and that California will not permit same-sex partners to validly marry within the state.

    Funny, the people who now claim Prop 22 has an invisible territorial limitation had no trouble seeing (and, in fact, exaggerating) its impact on California law when the issue was being debated. Only after it passed handily did they “discover” this hidden meaning found nowhere in its text, and subscribed to by 0 out of 3 appellate judges who have reviewed it.

    Xrlq (428dfd)

  23. […] Patterico and his guest poster also take a stab at the issue here. […]

    The Southern California Law Blog » CA Senate Passes Same-Sex Marriage Bill (36e489)

  24. I don’t have a problem with Gay Marriage. I am not for a variety of reasons having to do with federalism a fan of the Defense of Marriage Act.

    However I think it’s best it goes through the Legislature. Eventually the line will have to be drawn somewhere, particularly with polygamy. FLDS and Muslims will push that one. As a religious and social right.

    Having this go through the Legislature instead of the courts means IMHO more probability of the line being drawn on the right side of polygamy (terribly harmful to children and women) than not.

    Jim Rockford (e09923)

  25. Huh, Joel B. and Ben Pugh, I don’t know where I got that idea — but I’ve been under that impression for years.

    I guess I must have been wrong. Oh well… even more of a reason why 22 should have been presented as a constitutional amendment from the git-go!

    Dafydd

    Dafydd (f8a7be)

  26. Oh well… even more of a reason why 22 should have been presented as a constitutional amendment from the git-go!

    Absolutely, I think we thing that may be the effect of all this “constitutional” reinterpretation, is that we see initiative statutes used less and less for controversial issues. Why not just amend the constitution and save yourself the problem. The main reason in the past, I think, is that it takes more signatures, and thus more $$$, to get the item to the ballot.

    Joel B. (568776)

  27. On legislatures over ruling initiatives: For what it is worth, Washington state law specifically treats that issue. I don’t recall the details, but the legislature can over rule a citizen initiative — but they have to jump through some extra hoops to do so. I think it depends partly on how old the initiative is.

    Now, back to writing my post, “Do You Believe in Magic”, inspired by our friend PD.

    Jim Miller (bc38fe)

  28. “California Legislature passes Homosexual Marriage ”

    1. This shows how arrogant the politicians are. After Prop. 22 passed by the majority of Californias defining the marriage between 1 man and 1 woman, the leftist/socialist/liberal politicians spit on the electorate.

    2. The reason they can spit on the constituents, is the GERRYMANDERING which assures, with 300% certainty, each incumbent a re-election. Thus, the Democrats, whose primaries are dominated by the leftist/socialist/atheist/agnostic/anti-religious cooks, elect the most left-wing politicos. In fact, during 2004, no seat in California changed hands from one party to another. The best thing you can do is to end gerrymandering Ted Costas is running the campaign

    3. Well, maybe this same-sex marriage is good. Now we can export it to the Middle East and bring a civil war in Islam. Hmmm…Naaah, they already have their own homosexual marriage.


    “FIRST MUSLIM HOMOSEXUAL MARRIAGE IN THE MIDDLE EAST, CAIRO, EGYPT”

    Excerpt-“The wedding between two Kuwaiti male lovers took place in Hilton Ramses Hotel in Cairo”

    You can’t believe it unless you see the site of the arab satellite TV – Al-Arabiya – that originally broadcast the story. The site also has hundreds of comments – some in English and many in Arabic.

    Stranger things have happened before.

    David (03f14c)

  29. Schwarzenegger says he’ll veto it.

    Xrlq (5ffe06)

  30. As someone who is opposed to gay marriage I hate to say this but opponents need to give up and face the inevitable. Gay marriage is going to happen sooner rather than later. Marriage in this state and throughout the country is a joke. Its probably harder to get a fishing license than a marriage license and people can get divorced for no reason. We need to stop wasting our time defending an institution than has little respect.

    Lou Parise (b99f84)

  31. “We need to stop wasting our time defending an institution than has little respect.”

    Its not like the institution is under any threat from homosexuals being able to tie the knot.

    actus (9982e6)

  32. “Its not like the institution is under any threat from homosexuals being able to tie the knot.”

    Not in its present sorry state, no. But I think it’s sad that marriage has become so degraded to the point where people are clawing eachother’s eyes out over what now amounts to tattered hand-me-downs from generations past, and I think it’s equally sad that none of the people I’ve heard opposing gay marriage have shown any recognition of the need for cleaning up their (and my) own back yard.

    It’s A-OK for marriage to continue being watered down into ever more of a farce, but God forbid we let gays in.

    Just sad all around.

    Scott (57c0cc)

  33. Scott,

    It’s A-OK for marriage to continue being watered down into ever more of a farce, but God forbid we let gays in.

    Whatever level of violence has been inflicted on marriage in the past by liberalized divorce is no justification for any additional violence upon it now. Interesting that your first impulse on finding what you consider to be a flaw in marriage is not to remove the flaw, but to gut marriage altogether.

    Marriage already “let[s] gays in.” We are all allowed access to marriage under the exact same terms, and likewise given access to divorce, all without reference to race, gender, creed, orientation, astrological sign, Myers-Briggs personality type, political affiliation, etc.

    Marriage is not a gay rights issue. Marriage was not instituted and practiced universally across time, geography, and culture to exhibit animus toward homosexuality. Even societies considered quite open and accepting of the practice did not consider same-sex unions “marriages.” At the very least this dispells the myth that without marriage, “gays” cannot be full class citizens.

    op-ed (79fadb)

  34. “Whatever level of violence has been inflicted on marriage in the past by liberalized divorce is no justification for any additional violence upon it now.”

    but what ‘violence’ is represented by gay marriage, something which has no rational connection to straight marriage? they’re completely different people. I can understand that some people feel their marriages are threatened by easier divorces (though I think they have bigger problems if what is keeping them together is the law). But I do not understand how any marriage is threatened by gay marriage.

    Unless by ‘threat’ one means the general discomfort that is experienced by bigots around the object of their bigotry.

    actus (9982e6)

  35. I don’t think it helps matters to call people bigots if they oppose gay marriage. But I agree: where’s the threat?

    Patterico (22db50)

  36. “I don’t think it helps matters to call people bigots if they oppose gay marriage.”

    I don’t know about help. But it certainly is true that the only explanation I can think of for a feeling of “threat” is bigotry.

    actus (9982e6)

  37. Schwarzenegger has everything on the line with his propositions (74,76,77), and he is handed huge gifts by the opposition Legislature – SB60 (free licenses for those who prove they are undocumented) and AB849 (gay weddings). Both these things are overwhelmingly opposed by legal voters, and overwhelmingly supported by Democrats. I wish the governor would have been more dramatic and kept his final decision on AB849 a mystery until a week before the election.

    The game is tied in the bottom of the 9th, and Schwarzenegger is up to bat with bases loaded. The Legislature just threw him an easy pitch; all he has to do is swing. This election is going to be fun.

    Shredstar (532850)

  38. Actus –

    Your use of the term “gay marriage” exhibits a certain disingenuity as I have already explained that marriage is not a gay rights issue.

    Further, the fact that you can imagine no other reason than bigotry for marriage’s current definition is indictment of your own creativity, not of my reasoning. For it seems the entire world up until just recently was perfectly capable of finding such a reason. As I pointed out in the very post you claim to be responding to, there have been multiple examples of cultures historically that exhibited no bigotry toward “gays,” yet universally, those cultures defined marriage as a man-woman relationship.

    While Dafydd gives some examples of reasons your imagination seems to have overlooked, I can give even more:

    The 800lb Gorilla in the Room:

    In order for same-sex couples to marry they have to make the definition all about the *feelings* of the two people involved and not about children. They have to remove the very social responsibility that warrants state notice of marriage to begin with. Because their unions will not result in offspring any consideration for children that is allowed to stay in the definition of marriage makes same-sex unions wholly unqualified. As you yourself have noted, once children are taken out of the picture, the state has no more interest in marriage.

    “Why I can’t support same-sex marriage” by J. David Velleman

    The problem that prevents me from supporting same-sex marriage has now broken into the American press. As reported here and discussed here, a gay-rights organization in Massachusetts has argued that, with the legalization of same-sex marriage in that state, Massachusetts birth certificates should replace the labels “Mother” and “Father” with “Parent A” and “Parent B”:

    Equality between homosexual and heterosexual marriages may therefore require us to deny that donor-conceived children have both a mother and a father, thereby expunging the children’s connection to half of their biological past.

    Elizabeth Marquardt: (comment comparing the push for no-fault divorce and for redefining marriage)

    In fact, it’s because of all the years I’ve spent on the divorce question that I can’t stop noticing how the children of SS couples debate is reproducing that earlier debate. The message is both cases is: adults are vulnerable, children are resilient. Society is supposed to protect vulnerable adults and the children will be fine. I can’t live with a society like that.

    The Opposing View of The Purpose of Marriage

    There could be no stronger refutation of the redefined marriage than the fact that it’s own supporters see no purpose in it.

    Additional examples can be found here:
    Tradition and the bedrock social institution

    Reread Dafydd’s post that is the root of this comment stream as well as the links I provide here and then let me know if you still find your imagination so lacking.

    op-ed (79fadb)

  39. “where’s the threat?”

    There are actually a number of threats that are “theoretically” not required, but are unavoidable. And by theoretically not required, I mean on paper things might look okay. It is in the implementation that these problems arise.

    For one, the “violence” of easy divorce stems from two things…

    1) It is a state endorsement to the notion of marriage being a “as long as you both shall love”. I think we can all agree that it seems crazy to imagine extending governmental regulation to areas of romance. Marriage is not recognized, on the surface by the state for its romantic qualities. It is recognized for its capacity to fully appreciate the rights and opportunities of the children that might happen in any heterosexual relationship. Yet heterosexual marriage, without the “danger” (if you will) of creating a citizen outside of these protections has no such import to the government. Instead the import, as discussed by advocates of SS”m” is to recognize their love, commitment and romance between each other — with out such they can’t consider themselves full class citizens! This is a good essay on that point.

    2) It is currently argued in various countries and states that recognize same-sex couples as marriages a sort of “equalized” notion of parenting. In other words, as they cannot have children between each other we pretend that no one can. Birth Certificates become more certificates of ownership, and parents are simply the current owners of the time. “Mother” and “father” no longer mean the biological parents but people who commissioned the child as if they were a deliverable of commercial contract. This violates their safety and rights in a number of ways. This point is discussed further in these essays, 1, 2.

    3) Assuming that some qualified sense of parenthood is acceptable to the advocates of SS”m”, it still comes at marginalization of a protected class. The handicapped. When a heterosexual couple gains access to government subsidy to overcome infertility it is to overcome a disability. I doubt that homosexuality should be called a disability, and I doubt that funds for disabled people should go to subsidize homosexuality. A good essay on that is here.

    This isn’t by any means an exhaustive list, yet I am exhausted.

    But I think it is safe to say the violence is not imaginary, and it is not a pretense for bigotry.

    On Lawn (0ee486)

  40. Actus, Patterico:

    I began writing a response to your question of why same-sex marriage was bad. It got longer and longer; it’s about three thousand words at the moment.

    So rather than inflict it upon you in the comments section or swamp Patterico’s site with another lengthy post in favor of traditional marriage, I will write it up as an article and post it on my site, which should be up and running within a couple of weeks now.

    When it’s up, I’ll post here and direct you to it.

    Fair enough?

    Dafydd

    Dafydd (f8a7be)

  41. (And my reasons are none of those cited by On Lawn above, good as they may be. I am concerned with something that I think is even more vital to Western Civilization: the civilizing of young males and the individualizing of young females.)

    Dafydd

    Dafydd (f8a7be)

  42. “I began writing a response to your question of why same-sex marriage was bad. ”

    I don’t care why you think its bad. I want to know how it threatens traditional marriage. By which I take to mean it would cause some of them to not occur or dissolve, or to be more likely to not occur or dissolve.

    Look to judge roberts for a refutation of your point #2. Gay people seek to adopt. So did judge roberts. If anything, that promotes the number of kids in the world who are cared for, rather than lowers.

    actus (9982e6)

  43. oops Dafydd. I mistakenly thought onLawn and your comments were the same. Sorry.

    actus (9982e6)

  44. oped-

    “Whatever level of violence has been inflicted on marriage in the past by liberalized divorce is no justification for any additional violence upon it now. Interesting that your first impulse on finding what you consider to be a flaw in marriage is not to remove the flaw, but to gut marriage altogether.”

    First of all, you don’t know what my “impulses” are, so I believe your musings on the subject count as “indictment of your own creativity, not of my reasoning”.

    What I really want is for people to collectively show the same recognition and alarm for the problems (and that is a big plural BTW – read my earlier post in this thread for some examples) currently afflicting the institution of marriage as they show for the prospect of including gays in same.

    But that hasn’t happened, and from everything I can see won’t happen. Instead, all of this angst and energy is directed outward at the newcomer. And that to me seems very sad, as well as willfully blind (or perhaps far-sighted is a better term).

    Let me make this really simple: what I’d really prefer is that we make real efforts

    A) to use much more stringent criteria for recognizing a couple as “married” (one of which should be inclusion of “old fashioned” language in the wedding vows such as “in sickness and in health, till death do us part” etc – if you want something more “contemporary” and “convenient” then you need a civil union not marriage),

    B) to lower the tax burden sufficiently that couples with small children could afford to have one spouse be a full-time home maker,

    C) to overhaul the divorce courts to convert them from a profitable industry to a means of last resort – the divorce court system in its present state is both sexist (to men) and distractingly convenient (to women), which pushes a lot of couples into divorce prematurely.

    D) to give marriage sanctity by treating it culturally as a serious lifetime commitment, to one another and to any children that may result from it.

    Doing those things would demonstrate our sincerity about marriage as an institution, and give us a leg to stand on in denying entry to others.

    To me all of the above are way more of a threat to marriage than including gays, but sadly that’s not a popular view.

    So you can misread my posts as boiling down to simple advocation of gay marriage, but if so you’re seeing what you want to, not what I said.

    Scott (57c0cc)

  45. Dafydd,

    I believe a good essay on the point of civilizing males can be found here.
    I look forward to your article, it sounds very interesting. If you don’t mind I’ll link to it from Opine where we collect (as best we can) arguments about marriage.

    Scott,

    If you don’t mind I’d like to post your commentary on Opine too. It is a point I’ve been trying to figure out to write for a long time.

    On Lawn (0ee486)

  46. On Lawn-

    I’d be flattered, and grateful for the help in shining some more light on the issues.

    Scott (57c0cc)

  47. Scott, I agree with all four of your suggestions, but I disagree with implication that defending marriage against EZ-divorce and defending it against fundamental redefinition is an either-or. It’s not. As a society, we can and should defend traditional marriage against all things that tend to cheapen it, including the no-fault, till-my-mood-does-us-part attitude toward divorce that has become popular in recent decades, and also against radical efforts by others to redefine the institution, particularly when such redefinition entails joining it at the hip with a separate legal institution that has never existed before in most jurisdictions, and is in its early, experimental stages in the few jurisdictions that do have it.

    Xrlq (6c76c4)

  48. Xrlq-

    “I disagree with implication that defending marriage against EZ-divorce and defending it against fundamental redefinition is an either-or.”

    I don’t see it as an either-or, but so far the only issue that seems to have inspired any energy or even notice among the proposed defenders of marriage has been the threat of including gays.

    I’ve tried to imagine how gay people might feel about this, and one of the things that immediately struck me (just on a basic human level) was the seeming hypocrisy of denying them the opportunity to marry based on the notion that it would “threaten” the institution – in the complete void of any other apparent concern for the major problems already besetting it.

    Personally I feel (as mentioned above) that if all we accomplish is barring gays from marriage and leave everything to continue on its downward spiral, then that’s just sad. I think that if ever there is a time when people care enough about marriage to actually try and have an honest national+ dialogue about it, now would be the time. But no one really seems to be speaking out about this, and the moment is passing.

    Otherwise as far as I can see all this yelling about letting gays in or not amounts to arguing about the arrangement of the deck chairs on the Titanic.

    Scott (57c0cc)

  49. I don’t know where you get your information, but opposing gay marriage is not the only thing traditional marriage proponents are doing to protect the institution. What do you call covenant marriages?

    As to your Titanic analogy, radically redefining marriage is hardly the same as rearranging the chairs. It’s more like recognizing that an iceberg has already let a lot of water in, and then intentionally ramming a second iceberg for good measure.

    Xrlq (e2795d)

  50. Xrlq, do you really believe that the other issues I raised above are being debated anywhere near as widely and heatedly as the subject of gay marriage? Give me a break.

    I felt that Dafydd’s post was a good representation of the problem that I was talking about; I felt his points about gay inclusion as a threat to marriage were valid and thoughtful but notably absent from them was any mention of the other problems already afflicting it which as previously mentioned are numerous and severe. I didn’t bring them up to appear pedantic, I brought them up because I consider them to be very real and hope more people will start including them in the discussion.

    And that brings us to what looks like a fundemental divide – to me, gay marriage is a 50 lb monkey that has been made out to be the 800 lb gorilla, while the 3 or 4 actual 800 lb gorillas remain studeously ignored. While it seems that in your view all of those other problems collectively amount to less than gay marriage as a single issue.

    We could throw charts and graphs at eachother all day but I think we both know that these issues are too large and complex for either of us to “prove” that our pet gripe(s) are the more “valid”, and therefore my Titannic anology is perfectly valid as a metaphorical depiction of the problem as I see it – and ditto for you and your version of same.

    It really just depends on what you consider to be the higher priority issue, and I’d recommend we leave it at that as neither of us is going to change the other’s mind about this.

    Scott (57c0cc)

  51. Dafydd,

    Feel free to post it here, if you’d like. Or, feel free to save it for your own site, if that’s what you’d prefer. Either way is good with me.

    I do think that the article should try to answer our question: where’s the threat?

    Patterico (746215)

  52. “What do you call covenant marriages?”

    prenups for the insecure?

    actus (9982e6)

  53. Patterico: I do think that the article should try to answer our question: where’s the threat?

    The issue of the “threat” to marriage was dealt with in this comment, above.

    I have also made it the subject of my most recent post on Opine, where I ask you a question in return. I hope you will take the time to answer.

    op-ed (77b8bb)

  54. Where’s the Threat

    Since the question keeps coming up, I will go ahead and answer it, but quite frankly, the “threat” is obvious. The institution is being replaced by a different one, period. While the existing institution has proven its worth across all cultures and a…

    The Opine Editorials (59ce3a)

  55. Actus:

    I don’t care why you think its bad. I want to know how it threatens traditional marriage.

    Yes, Actus, that is what it is about. I just wrote tersely. It is about how same-sex marriage threatens the institution of marriage, and also why this is a bad thing for Western Civ.

    Dafydd

    Dafydd (f8a7be)

  56. Actus:

    My position on the adoption of children by same-sex couples is complicated. I absolutely support it (assuming we’re talking about a loving same-sex couple that are otherwise qualified to be parents), but only in two circumstances:

    The same-sex couple and the child have already formed a bond — for example, they have already raised the child for months, and the child is old enough to have actually bonded (at least old enough to recognize them as distinct from another two people); in this case, the child should remain with the same-sex couple even if there are qualified, loving, married opposite-sex couples available.
    There is no loving, married opposite-sex couple willing to adopt the child; this can happen in cases of older children.

    I would put a same-sex couple higher up the list than a single parent, but only just.

    The reason has nothing to do with morals, as I do not consider homosexuality to be immoral. Rather, I believe children, when at all possible, should be raised by a male father and a female mother, because both aspects of humanity are equally vital. But in circumstance #1 above, when a child has already bonded with a parent (assuming the parent to be fit), it’s more important that such a bond be honored… I would also support leaving a child with a single parent, if they have already bonded (bonding is more important in a child’s development than poverty).

    But if we’re talking about infants — by far the majority of adoptions — then I would only turn to lesser relationships if there were no traditionally married couples who are qualified to be parents and who love each other available to adopt the baby.

    Dafydd

    Dafydd (f8a7be)

  57. On Lawn:

    I believe a good essay on the point of civilizing males can be found here.

    It’s interesting, and I agree with it; but it’s definitely a different topic than I discuss.

    Dafydd

    Dafydd (f8a7be)

  58. Scott:

    I felt that Dafydd’s post was a good representation of the problem that I was talking about; I felt his points about gay inclusion as a threat to marriage were valid and thoughtful but notably absent from them was any mention of the other problems already afflicting it which as previously mentioned are numerous and severe. I didn’t bring them up to appear pedantic, I brought them up because I consider them to be very real and hope more people will start including them in the discussion.

    Scott, the problems you listed are not as often discussed because they are not particularly controversial. Nobody denies that they are problems. That’s why, as Fred mentioned, we have this movement for “covenant marriages.”

    But making divorce possible without the consent of the other party can be seen as a liberty issue — which same-sex marriage cannot, much as its many advocates would like to believe it can. Just as repealing the laws that made adultery an actual crime is a liberty issue; and I also argue that repealing the laws against sodomy was a liberty issue. I completely support Lawrence v. Texas, though I’m not fond of the reasoning (unlike Roe v. Wade, where I not only find the reasoning peurile but also completely reject the conclusion).

    Nobody has any constitutional right to marry. You can define a statutory right, but it’s limited to those who qualify under the statute. But I do not believe, as a legal matter, in contracts in perpetuity that cannot be dissolved. (Imagine if your employer could legally force you to remain in his employ for the rest of your life, no matter how bad the working conditions become, no matter how much he reduces your salary, no matter how much he belittles and berates you — so long as he does not physically beat you.)

    Thus, I support no-fault divorce as a legal matter, even while abhoring the culture it produces and the lack of seriousness it betrays. Not everything bad must also be illegal.

    Dafydd

    Dafydd (f8a7be)

  59. Patterico:

    I do think that the article should try to answer our question: where’s the threat?

    Grrrr! That is exactly and precisely what it is about!

    Mrmee mrmee mrmee….

    Dafydd

    Dafydd (f8a7be)

  60. Patterico:

    Anent my comment #57, I see that Patterico’s Pontifications does not pass along the <ol> and <li> HTML text-formatting code to comments (I believe your software also doesn’t pass along font codes to comments). Argh. What’s weird is that it showed up fine in the comment preview down below the “Leave a comment” box!

    (I guess we’ll also see whether it passes along the ampersand-code-semicolon method of indicating a character that would otherwise be considere an HTML code element! What should appear is left-angle-bracket ol right-angle-bracket and left-angle-bracket li right-angle-bracket.)

    That should have been:

    My position on the adoption of children by same-sex couples is complicated. I absolutely support it (assuming we’re talking about a loving same-sex couple that are otherwise qualified to be parents), but only in two circumstances:

    1. The same-sex couple and the child have already formed a bond — for example, they have already raised the child for months, and the child is old enough to have actually bonded (at least old enough to recognize them as distinct from another two people); in this case, the child should remain with the same-sex couple even if there are qualified, loving, married opposite-sex couples available.

    2. There is no loving, married opposite-sex couple willing to adopt the child; this can happen in cases of older children.

    I would put a same-sex couple higher up the list than a single parent, but only just.

    The reason has nothing to do with morals, as I do not consider homosexuality to be immoral. Rather, I believe children, when at all possible, should be raised by a male father and a female mother, because both aspects of humanity are equally vital. But in circumstance #1 above, when a child has already bonded with a parent (assuming the parent to be fit), it’s more important that such a bond be honored… I would also support leaving a child with a single parent, if they have already bonded (bonding is more important in a child’s development than poverty).

    But if we’re talking about infants — by far the majority of adoptions — then I would only turn to lesser relationships if there were no traditionally married couples who are qualified to be parents and who love each other available to adopt the baby.

    Dafydd

    Dafydd (f8a7be)

  61. “Your use of the term “gay marriage” exhibits a certain disingenuity as I have already explained that marriage is not a gay rights issue.”

    But gay marriage obviously is a gay rights issue. That’s why I use the term ‘gay marriage.’

    “The reason has nothing to do with morals, as I do not consider homosexuality to be immoral. Rather, I believe children, when at all possible, should be raised by a male father and a female mother, because both aspects of humanity are equally vital.”

    I believe children should be raised with more wealth than otherwise, but I don’t think we should be ranking adopters like this. I think we should just be determining whether the adopter is more fit than the foster care system.

    As soon as there is a shortage of children, then we can find the way to take them from the less fit and give them to the more fit. As determined by the moral people, of course. Untill then, there is plenty of children needing a loving family. Poor, wealthy, gay, straight, black or white.

    actus (9982e6)

  62. I would put a same-sex couple higher up the list than a single parent, but only just.

    I wouldn’t. Single straights might hook up with other straights later.

    Xrlq (428dfd)

  63. Xrlq:

    I wouldn’t. Single straights might hook up with other straights later.

    So you’re cool with the adopted kid sitting home alone while Mom goes out dating, trying to “hook up” with some guy later. I’m not.

    (By the way, watch your use of slang; as I understand current phraseology, to “hook up” means to get together for meaningless, even semi-anonymous sex… not to marry. At least, that’s what it meant about a year ago.)

    Dafydd

    Dafydd (f8a7be)

  64. OK, maybe “hook up” was the wrong phrase. But you get my (intended) drift.

    Geez, between that and missing an Animal House reference, I really need to go back to cool-school.

    Xrlq (428dfd)

  65. Scott,

    As promised (took a while to get to it though) I’ve put your post up on Opine. I’ll have more to say agreeing with in in my own post later. Thanks for letting me post it…

    On Lawn (fb586e)

  66. actus: But gay marriage obviously is a gay rights issue. That’s why I use the term ‘gay marriage.’

    But if “gay marriage” is to be a gay rights issue, it must stand for everything we abhor. It must include some test of sexual preference to make sure only “gays” are admitted. Gay rights activists to date have opposed such tests. It must be a special right available to a select few. Gay rights activists emphasize that they are not looking for special rights, etc. In short, you can invent a gay rights issue out of marriage if you want to, but it only serves to encourage massive government intrusion into personal privacy and to make your position less palatable to both sides of the same-sex “marriage” issue, which, quite frankly, dismisses you as a crank.

    op-ed (56fe01)

  67. […] Ummm…wrong answer. The courts are not the correct venue, the legislature is — but not when it votes counter to a popularly passed initiative. In fact, it’s very possible that the legislature’s actions are illegal. […]

    Hoystory » Blog Archive » I can’t hear you (322185)

  68. […] When Arnold vetoed the bill, I supported him. Here’s what I said at the time: I am sympathetic to the concept of same-sex marriage, but I think Schwarzenegger has it just right. This bill clearly conflicts with Proposition 22 (which I voted against), and cannot legally become law without submission to the voters — something the bill does not contemplate. For more, see Dafydd ab Hugh’s earlier post. […]

    Patterico’s Pontifications » L.A. Times Has Ignorant Editorial on Gay Marriage in California (421107)


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