Friday, October 27, 2006

The law of love and gravity

such are the secret
outcomes of revolution!
that two women can meet
. . .
as two eyes in one brow
receiving at one moment
the rainbow of the world.

Adrienne Rich, To Judith, Taking Leave (1962)

The syllabus of the New Jersey Supreme Court's decision in Lewis v. Harris, No. 68-05 (N.J. Oct. 25, 2006) states the essence of this landmark case:

Denying committed same-sex couples the financial and social benefits and privileges given to their married heterosexual counterparts bears no substantial relationship to a legitimate governmental purpose. The Court holds that under the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution, committed same-sex couples must be afforded on equal terms the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes. The name to be given to the statutory scheme that provides full rights and benefits to same-sex couples, whether marriage or some other term, is a matter left to the democratic process.
Dale Carpenter has provided excellent analysis of this decision. I write here to stress a single point that engages Jurisdynamics' central focus: illuminating the relationship between law and societal change.

This forum's original mission statement quoted the closing passage from Tennessee Williams's play, The Glass Menagerie, as inspiration for Jurisdynamics' various "[a]ttempt[s] to find in motion what was lost in space." In the wake of Lewis, I feel compelled to quote from Williams's introduction to The Glass Menagerie:
[P]urity of heart is the one success worth having. “In the time of your life -- live!” That time is short and it doesn’t return again. It is slipping away while I write this and while you read it, and the monosyllable of the clock is Loss, loss, loss, unless you devote your heart to its opposition.
Men kissingAmong life's challenges, none is more difficult to undertake, and none is more rewarding when achieved, than the mission of finding one person to love above all others, and persuading that person to love you in return. The law has no legitimate basis for regulating this quest on the basis of the race or sex of one's beloved.

The most obvious analogy supporting legal recognition of same-sex marriages is Loving v. Virginia, 388 U.S. 1 (1967). It's such an obvious analogy that it is futile to cite any of the hundreds, thousands of sources that make the connection. But just because an argument is obvious does not make it wrong. In this instance, the Loving analogy is complete.

Interracial coupleI take Loving personally. It was decided before I reached six months of age. I came of age in the geographic center of the American region that historically sanctioned extraordinary, even violent, measures to prevent even the hint of interracial mingling. I was born where all my immediate ancestors had been born themselves, an island at the eastern edge of World Island. My wife traces most of her ancestry to an island at the western extreme. The suggestion that these circumstances of ancestry, none of which either of us chose or could ever control, could bar us from being married is singularly offensive.

And so too is the suggestion that the sex of the members of a committed couple should determine that couple's entitlement to full recognition and protection under the law.

In spite of all this, it appears that one national political party seems hell-bent on devoting the final days of the 2006 campaign to condemning the mere suggestion of same-sex marriage. For shame. A party that has nothing affirmative to offer voters besides an incitement to hate deserves no votes. To oppose equal dignity for same-sex couples is an expression of revulsion. Decent people do not express revulsion at their friends or their families. Over time decency -- and love -- will prevail.

Dixie ChicksThose who would believe that they can leverage revulsion at same-sex relationships into immediate political advantage might retrieve their Dixie Chicks albums from cold storage. The second track on the Chicks' second album says it all:
Nobody runs from the law now baby
Of love and gravity
Dixie Chicks, "If I Fall You're Going Down With Me" , on Fly (1999).

Religiously inclined Republican voters might consider this comparison. Nearly two decades ago, a theocracy condemned Salman Rushdie to death for writing passages like the following:
To get his mind off the subject of love and desire, he studied, becoming an omnivorous autodidact, devouring the metamorphic myths of Greece and Rome, the avatars of Jupiter, the boy who became a flower, the spider-woman, Circe, everything; and the theosophy of Annie Besant, and unified field theory . . . . He filled himself up with God knows what, but he could not deny, in the small hours of his insomniac nights, that he was full of something that had never been used, that he did not know how to begin to use, that is, love.
Salman Rushdie, The Satanic Verses 23-24 (1988). To put it in words that should be familiar to a significant chunk of the Republican base, but evidently mean nothing in practice:
If I speak in the tongues of men and of angels, but have not love, I am a noisy gong or a clanging cymbal. And if I have prophetic powers, and understand all mysteries and all knowledge, and if I have all faith, so as to remove mountains, but have not love, I am nothing.
When this generation shall have passed from this earth, God and/or posterity will judge us as severely for our unwillingness to confess the legitimacy of homosexual love as we today judge those who resist the rightness -- legal, moral, and spiritual -- of Loving v. Virginia. Yesterday Massachusetts, today New Jersey, tomorrow America from sea to shining sea.

33 Comments:

Blogger gorjus said...

Professor--this is quite personal, thoughtful, and utterly beautiful.

10/27/2006 11:57 AM  
Blogger The MinuteMan said...

I endorse the spirit of this post but factually, I am convinced that the analogy to Loving v. Virginia is not accurate, basically because in Loving, the Supreme Court finaly took up an issue it had been ducking for years and addressed it *after* many states had eliminated their own anti-miscegenation laws and *after* the Congress had done the heavy lifting with the Civil Rights and Voting Rights laws.

With Loving, the Supreme Court followed, rather than led.

Here is a link to a Harvard Law prof making that argument.

Tom Maguire

10/27/2006 2:34 PM  
Anonymous Anonymous said...

Can you not separate the effect of the decision from the way it was reached and admit that these judges slid down a slippery slope and wound up doing the legislature's work? That's distinct from whether or not the outcome is good or bad, and you shouldn't assume that everyone who criticizes the decision disagrees with gay marriage. Some just think it is a legislative, not a judicial, prerogative to adopt it.

10/27/2006 2:45 PM  
Anonymous Anonymous said...

It's nice to see Instapundit picking up on this. Conservatives need to face the fact that the case for same-sex marriage has very close ties to the case for interracial marriage. And the arguments against same-sex marriage are closely analogous to the (mostly historical now) arguments against interracial marriage.

(Anticipating Instapundit reader objections: I know instapundit doesn't like to be lumped in with conservatives, and I'm not doing that here. Merely noting that the sites that quote him approvingly are generally on the right, and so a lot of right wingers will see this link. They won't like to have the comparison rubbed in their faces, but it will help them face up to the arguments they make.)

10/27/2006 2:47 PM  
Blogger Mark Buehner said...

Conservatives need to face the fact that the case for same-sex marriage has very close ties to the case for interracial marriage.

I'm a conservative, and I think you are right.

10/27/2006 2:51 PM  
Anonymous Anonymous said...

You write:

Among life's challenges, none is more difficult to undertake, and none is more rewarding when achieved, than the mission of finding one person to love above all others, and persuading that person to love you in return. The law has no legitimate basis for regulating this quest on the basis of the race or sex of one's beloved.

Like Tom, I appreciate the spirit of the post, but I find the reasoning rather shoddy. Even granting the premise contained in the first sentence, the second sentence, utterly conclusory, does not follow from it. Moreover, the law doesn't regulate the quest to find one's one true love on the basis of race or sex; rather, it regulates only which couples may enjoy a bag of financial and legal rights and obligations. That obtaining this bag is often viewed as punctuation on the quest's successful conclusion does not imply that the law is regulating the quest itself. Nobody's trying to bring back Bowers v. Hardwick or the like.

I also agree with Tom that the analogy to Loving fails on the basis that in Loving, the Court was bringing the law into harmony with a new but existing sociopolitical consensus. Here, no such consensus exists.

Finally, while I share your hope that one day same-sex couples will be able to enjoy the incidents of marriage all across the country, I cannot help but marvel at the irony of same-sex marriage proponents seeking through the courts a thing that the courts are profoundly incompetent at providing: social acceptance. I'm afraid that no matter how many legal notches same-sex marriage proponents manage to carve into their belts, they're still going to need to fight the long and difficult battle of convincing America that the normalization of gay relationships is on balance a good thing.

10/27/2006 3:03 PM  
Blogger Andrew said...

Oh Please. Launching into platitudes and generalizations is what people do when they can't marshall facts for the side in which they have an overwhelming emotional investment.


Even the ancient Greeks weren't stupid enough to extend marriage to same sex couples. But of course, as Orwell said, there are some things so stupid that only an intellectual will believe them. That the State has the same interest in same-sex couples as it does in man-woan couples is one of those stupidities that hopefully this society will survive through.

10/27/2006 3:04 PM  
Blogger Ferris said...

While I personally support the concept of same sex marriage I don't see how it's a right.

I am not a lawyer but it seems the comparisson to Loving is wanting in two important respects...

First, race is not an integral part of marriage. Sex, until about 20 minutes ago in the grand scheme of things most certainly was.

Second, discrimination on the basis of race is constitutionally prohibited but the same can not be said of sexual orientation.

I think it's dangerous when we conflate our wishes with the facts at hand.

10/27/2006 3:14 PM  
Anonymous UIUC 3L said...

Amen, Brother. Slowly but surely, from coast to coast...

10/27/2006 3:17 PM  
Blogger mockmook said...

"A party that has nothing affirmative to offer voters besides an incitement to hate deserves no votes."

Is this representative of the "logic"/"analysis" in all your postings here?

So, you are fighting supposed bigotry by saying a whole class of people are inciting hatred? Irony anyone? Hello? [crickets]

Please provide examples of the Republican "party" inciting hatred of gays (and if you go Falwell, I can match you a Klan Byrd, i.e., every party has individual bigots).

10/27/2006 3:43 PM  
Anonymous BobN said...

"I also agree with Tom that the analogy to Loving fails on the basis that in Loving, the Court was bringing the law into harmony with a new but existing sociopolitical consensus. Here, no such consensus exists."

The sociopolitical consensus that mixed race marriage was acceptable did not arrive until almost 30 years after Loving was decided. At the time the SCOTUS made that ruling, yes, some states had already "led the way", but opposition to interracial marriage still hovered over 90%. It was even opposed by a large number of blacks (don't remember the percentage).

In the case of same-sex marriage, a few states ARE leading the way. How many have to "lead the way" to legitimize a constitutional right?

To the poster who pointed out that the Greeks did not extend marriage to same-sex couples. True, the Greeks could not imagine a free male citizen owning another free male citizen. We live in different times.

10/27/2006 4:03 PM  
Blogger Greg D said...

"Among life's challenges, none is more difficult to undertake, and none is more rewarding when achieved, than the mission of finding one person to love above all others, and persuading that person to love you in return."

Wow, that's rather bigoted and closed minded of you. Don't you know any poly people, who understand it's possible to have more than one "love of your life"?

Also, the comparison with Loving misses one basic point:

Interracial marriages have been happening since the "races" started meeting, thousands of years ago.

Same sex marriages haven't.

10/27/2006 4:59 PM  
Blogger Andrew said...

The Equal Protection provision of the New Jersey Constitution is in Article I, Paragraph 5 of the New Jersey Constition, but that Paragraph was never mentioned once by the New Jersey Supreme Court this week. Paragraph 5 clearly bans discrimination based on race, and so would clearly ban anti-miscegenation laws.

The New Jersey Supreme Court instead relied upon Article I, Paragraph 1, from which the word "equally" was struck out when the language was originally drafted in 1844. I'm not aware that the New Jersey Supreme Court ever identified an equal protection principle in Article I, Paragraph 1 until AFTER the New Jersey Constitution was most recently readopted, in 1947.

We do care about what the law says, don't we?

It's an undisputed that marriage is important to the welfare of children. The NJ Supreme Court decision this week completely ignored the negative impacts on children of smae-sex marriage as compared to opposite-sex marriage, merely because the current executive branch officials in NJ chose to do so.

Legislatures have traditionally believed that, other things being equal, it is best for children to grow up with both a mother and a father. As New York's top court put it, "Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like. It is obvious that there are exceptions to this general rule...but the Legislature could find that the general rule will usually hold." Legislatures and most individuals have been putting that general rule into practice for thousands of years. Whether they should continue to do so in the future is an interesting policy question. But the New Jersey Supreme Court has now forbidden the legislature from ever doing so again.

Does a child have a right to preferably grow up with his or her natural parents? Does a child have a right to preferably grow up with one mother and one father? Evidently, such rights, or even the possibility of such rights, are not worth a court's attention. I find such judicial certitude frightening.

10/27/2006 5:38 PM  
Blogger Clayton said...

The analogy to Loving is wrong on so many levels.

1. Miscegenation laws were never universal in the United States, and were actually a dangerous, seventeenth century colonial innovation. No society has ever recognized gay marriage.

2. Miscegenation laws were barely a majority of the states at their high water mark, early in the twentieth century, and even then many states with such laws limited them bans on a particular combination (usually white and black).

3. When Loving was decided, the majority of American states--34 out of 50--had already lost those laws. Some, like California, had done so judicially, but most had done so legislatively.

4. Loving was decided based on the 14th Amendment, which was passed specifically to prohibit racial discrimination against blacks. You can argue that the Supreme Court wrongly decided this, based on original intent, but there was at least some proximate connection between race and the 14th Amendment. The New Jersey Supreme Court's equal protection claim is based on constitutional provisions that were never about sexual orientation.

10/27/2006 6:17 PM  
Blogger Clayton said...

One other flaw is the analogy to Loving, and it is by far the most severe: Virginia did not simply refuse to recognize the Loving's marriage--it threatened to send them to prison if they did not leave the state for 25 years. If gay couples find someone prepared to officiate at a gay wedding, the response of the government would be to say, "So?"

That's a rather big difference, isn't it?

10/27/2006 6:21 PM  
Anonymous Chris A. said...

Strangely you talk about love, but overlook the responsibility and implications involved in publically endorsing social constructs that are essential to the foundation of our very society.

Has it crossed your mind that same-sex marriage actually shows extreme contempt for children and will ultimately lead to a form of slavery?

Lewis declares that recreational sex between two people is as valuable to society as procreational sex, completely ignoring the role such sex has in propagating society in general. It's summary completely skirts the central tenant of it's conclusion which is expanding the choice of the marriage partner's sex.

As Lewis v. Harris states: Denying committed same-sex couples the financial and social benefits and privileges given to their married heterosexual counterparts bears no substantial relationship to a legitimate governmental purpose.

If the interest of propogation of society doesn't count as a legitimate governmental purpose, I don't know what does.

The burden for propogating those generations now falls squarely on the heterosexually oriented, while removing special benefits and recognition of marriage for fulfilling that responsibility. How long will it be before paternity obligations are rejected using Lewis as the legal basis? This issue is never addressed.

Additionally, if same-sex marital integrity is maintained through egg sales and surrogacy services, children will become a product of Interstate Commerce - we're back to pricing out human beings - in short: legally established slavery. Just go ask Will Halm about this.

So Lewis effectively establishes a dual class system in NJ that greatly discriminates against children - even to the point of hating future generations.

The Lewis case doesn't demonstrate love, it demonstrates societal suicide.

10/27/2006 6:50 PM  
Blogger Evan M. Thomas said...

http://spiraloflies.blogspot.com/2006/10/too-tame-nj-supreme-court-decision.html

"And so too is the suggestion that the sex of the members of a committed couple should determine that couple's entitlement to full recognition and protection under the law."

I can't say I really agree with the above, because I don't think it's radical enough. If the NJ Supreme Court really wanted to shake things up, they would have found that the state's involvement in marriage, heterosexual and homosexual, violated the US Constitution.

Specifically, every American's First Amendment right to freedom of religion, since if a man and woman (or any other combination of men and women) are married before their god, who is the government to say otherwise; either by law or with a marriage license requirement?

10/27/2006 7:37 PM  
Blogger Clayton said...

"I can't say I really agree with the above, because I don't think it's radical enough. If the NJ Supreme Court really wanted to shake things up, they would have found that the state's involvement in marriage, heterosexual and homosexual, violated the US Constitution.

"Specifically, every American's First Amendment right to freedom of religion, since if a man and woman (or any other combination of men and women) are married before their god, who is the government to say otherwise; either by law or with a marriage license requirement?"

This shows an inadequate understanding of the scholarly research on the meaning of the First Amendment's freedom of religion clause.

There are a couple of different models that have been advanced, but it is clear enough to me that the Framers intended it to protect beliefs, not actions. Otherwise, how could a law prohibiting human sacrifice be Constitutional? How could sex with minors be unlawful if it was part of one's religion? How could torturing to death animals be unlawful if it was a genuine part of your religious practices?

If you want to understand what the Framers understood by religion, look at their actions. There was a homogenity of religious belief in America at the time. Most states limited public officeholding to either Christians (with requirements, such as the Pennsylvania Constitution of 1776 you believe in the truth of both the Old and New Testaments) and sometimes only to Protestants (such as the South Carolina Constitution of 1778).

What troubles me is how many lawyers know nothing of subjects on which they pontificate.

10/28/2006 1:01 AM  
Anonymous Anonymous said...

The analogy to Loving is wrong on so many levels.

And yet, the first three you list are all just one level--"not as many people as disagree with gay marriage, disagreed with interracial marriage." Which is completely void of any legal or rational weight.

If the interest of propogation of society doesn't count as a legitimate governmental purpose, I don't know what does.

That's a rational reason for promoting marriage, surely; but it has absolutely no bearing on why such a right should be denied gay couples. (1) People aren't going to stop making babies just because gays can get married, and (2) gays have children, too. If marriage is a proper environment in which to raise children, then that's an argument in favor of letting gays marry.

While I personally support the concept of same sex marriage I don't see how it's a right.

The right to choose whom one wants to marry? Seems obvious to me.

10/28/2006 3:44 PM  
Blogger Larry Fafarman said...

I disagree with the comparison of same-sex marriage to interracial marriage -- they are fundamentally different. For one thing, most people are readily identifiable as to sex but a lot of people are not readily identifiable as to race. Also, racial distinctions are inherently suspect because their usual purpose or effect has been to stigmatize non-whites as inferior or undesirable.

Also, here are some drawbacks of same-sex marriages and civil unions:

(1) They are unfair to people -- whether gay or straight -- who would like the advantages of such relationships (e.g., inclusion in a partner's employer's medical and pension plans) but who do not want to be perceived as being gay. There is still something of a social stigma attached to being gay.

(2) Because laws on recognition of same-sex relationships will vary from state to state, some gays will be more equal than others.

(3) Same-sex marriages and civil unions create great problems for the "full faith and credit clause," Article IV, Section 1 of the Constitution, which says, "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." There is already a child custody lawsuit because Vermont civil unions are not recognized in Virginia -- see this article.

(4) Monogamous same-sex marriages and civil unions are unfair to people who are denied legal recognition of polygamous and other plural relationships. If monogamous same-sex marriages and civil unions are allowed, what justification is there for denying plural marriages and civil unions?

Also, complaints by gays that not being able to get married prevents them from doing such things as inheriting a partner's assets or visiting a partner in a hospital are without foundation.

I think that by pushing for same-sex unions, gays are risking a backlash and possible loss of some of the gains that they have already made. For this reason, I am surprised that I have not seen any gay organization oppose same-sex unions.

10/28/2006 3:51 PM  
Anonymous Anonymous said...

"Additionally, if same-sex marital integrity is maintained through egg sales and surrogacy services, children will become a product of Interstate Commerce - we're back to pricing out human beings - in short: legally established slavery. Just go ask Will Halm about this."

I thought life started at conception/fertilization? Does this mean fertile women are monthly killers, by not getting immediately impregnated?

10/28/2006 4:50 PM  
Anonymous Skemono said...

ferris said:

First, race is not an integral part of marriage. Sex, until about 20 minutes ago in the grand scheme of things most certainly was.

How so? If, by "20 minutes ago in the grand scheme of things" you mean "several decades ago when wives were expected to stay at home and raise the kids", I could see that. But what bearing does that have on marriage now?

10/28/2006 5:25 PM  
Anonymous Skemono said...

There is still something of a social stigma attached to being gay.

Which isn't going to be erased by keeping in place homophobic laws that help create such a stigma.

Because laws on recognition of same-sex relationships will vary from state to state, some gays will be more equal than others.

But the goal is to be able to marry in every state. Are you saying that no state should allow gay marriage until every other one does?

Same-sex marriages and civil unions create great problems for the "full faith and credit clause," Article IV, Section 1 of the Constitution, which says, "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state."

Again, the goal is for marriage to be legal nation-wide, in which case such a problem is moot.

If monogamous same-sex marriages and civil unions are allowed, what justification is there for denying plural marriages and civil unions?

Personally, I don't care whether polygamy is legal or not. But unlike gay marriage, where people are being discriminated against on the basis of sexual orientation and/or sex, there's no 'class' of people being discriminated against here.

I think that by pushing for same-sex unions, gays are risking a backlash and possible loss of some of the gains that they have already made.

The same would be true of any push for equality gays make.

10/28/2006 5:32 PM  
Blogger Lee J. Yatlee said...

At the time of Loving v. Virginia, marriage was understood, even by the US Supreme Court, as a union between a man and a woman, and it was this relationship to which everyone had a right regardless of race. But at the time of Loving v. Virginia, not only were mixed-race couples not allowed in some states to obtain a license to marry, they were not even legally permitted to marry in a private ceremony independent of the state, nor to live together, engage in sexual relations or start a family.

If we accept the premise that the fundamental right to marry really translates in practice as the right for a couple to legally cohabit and engage in sexual relations, then homosexual couples do not find themselves in the same situation as at the time of Loving v. Virginia. They are legally permitted to do this today, and are even permitted to start families through the adoption of children or by resorting to artificial insemination in most states. They can do this without even the necessity of ceremony or license whatsoever. So invoking the fundamental right to marry that was obtaining the state’s permission to cohabit and engage in sexual relations that was at the core of Loving v. Virginia can no longer be valid or relevant when making the comparison of homosexual relationships to inter-racial relationships, as that motive is utterly vacated in the present legal circumstances of today. Marriage as an issue of the right to legally cohabit and engage in sexual relations is entirely moot.

It is now a question of state support of any domestic relationship in which couples may want to situate themselves that is at issue. The deliverance of a marriage license no longer serves the purpose of permitting couples the legal entitlement to cohabit and have sexual relations together as it does to open up the way for them to receive the benefits and privileges that the state confers as inducements to help stabilize their relationships.

The right of any and all relationships between persons to receive state support in the form of the benefits and privileges that marriage confers, however, enjoys no particular constitutional protection. The sole obligation upon the state is the equal application of the law to the constitutionally valid classifications deemed pertinent to a governmental objective. Therefore, the state may confer these inducements to certain types of relationships but not to others where a legitimate governmental purpose is seen. This is entirely at its option.

The state then, may elect not to offer inducements for other types of unions when there is simply no perceived need to do so, or because these sorts of unions may even need to be discouraged. Thus, the state will not offer these inducements to the unions of brothers and sisters; the state will not offer these inducements whenever there is a prepubescent partner or legal minor involved, or whenever there is someone already receiving state marriage benefits because of a still valid marriage, or when the partners are of the same sex.

As the only rational classifications that are the concerns of marriage are presently men and women and not heterosexual couples, there is no violation of any fundamental right as it concerns classifications based on sexual practices or orientations, because these are not considered legally pertinent classifications as it concerns the marriage statutes. As there is no constitutional right of persons to receive state support for any and all relationships, to arbitrarily confer the rights and benefits of marriage to homosexual couples when there is no legitimate governmental purpose to do so, while not doing this for other types of human relationships also, would constitute a privilege to this class only and be a flagrant violation of equal treatment to the others.

10/28/2006 10:40 PM  
Anonymous Skemono said...

But at the time of Loving v. Virginia, not only were mixed-race couples not allowed in some states to obtain a license to marry, they were not even legally permitted to marry in a private ceremony independent of the state, nor to live together, engage in sexual relations or start a family.

Except three years earlier, in McLaughling v. Florida (379 U.S. 184), the Supreme Court already ruled that it was unconstitutional to prevent interracial couples from cohabiting. So by your logic, Loving was wrongly decided.

to arbitrarily confer the rights and benefits of marriage to homosexual couples when there is no legitimate governmental purpose to do so

And can you come up with a reason to pass these rights to heterosexual couples that does not also apply to homosexual ones? I have heard it said that these rights and benefits are bestowed in order to benefit the children of such a marriage--are you saying that the children of a homosexual couple do not deserve to be raised in the same environment?

10/29/2006 3:46 PM  
Blogger Larry Fafarman said...

Skemono said,

And can you come up with a reason to pass these rights to heterosexual couples that does not also apply to homosexual ones? I have heard it said that these rights and benefits are bestowed in order to benefit the children of such a marriage--are you saying that the children of a homosexual couple do not deserve to be raised in the same environment?

What about the children resulting from other relationships where marriage is not allowed -- e.g., polygamy, incest, and an underage partner? Don't those children also deserve these rights and benefits? Why did the underage father of Mary Kay LeTourneau's children have to wait until he was of age (and she was out of prison) to marry her?

Also, aside from marriage and civil unions, children get a lot of rights and benefits just from laws concerning natural and adopted children.

10/30/2006 6:42 PM  
Anonymous Skemono said...

Mr. Fafarman, I've already mentioned that personally I don't really see any reason why polygamy shouldn't be outlawed. There may be a valid argument for it, but I haven't seen it.

Incest and underage parents, though, are very different matters. Incest increases the chances of genetic defects, and I shouldn't have to list the reasons why being an underage parent is bad for both parent and child. There are valid reasons to want to discourage these. Children raised by gay parents, on the other hand, turn out no worse than those raised by straight couples--there's no reason to prevent them from being married.

10/31/2006 12:48 AM  
Anonymous Skemono said...

Sigh. I meant, of course, "why polygamy should be outlawed", not shouldn't.

10/31/2006 12:50 AM  
Blogger Lee J. Yatlee said...

Skemono said... Except three years earlier, in McLaughling v. Florida (379 U.S. 184), the Supreme Court already ruled that it was unconstitutional to prevent interracial couples from cohabiting. So by your logic, Loving was wrongly decided.

Thank you for the correction. The wording should have been:

"Prior to the time of Loving v. Virginia....."

Laws against unmarried cohabitation are still on the books in some states, and ironically, they apply only to opposite-sex couples. Same-sex partners can legally cohabit without a worry. This still makes the argument invoking Loving v. Virginia a moot one.

Skemono said... And can you come up with a reason to pass these rights [of marriage] to heterosexual couples that does not also apply to homosexual ones?

First of all, the classifications of heterosexual and homosexual are not proper if you mean sexual orientation. Secondly, the classifications concern whom individuals may marry, not the couples themselves.

The effects to society due to the sexual activities of opposite-sex couples, which are the birth of babies, constitute the legitimate state interest for this particular relationship that does not exist for same-sex relationships. Therefore, the use of the classifications of men and women are the means that are rationally related to the legitimate governmental purpose of “steering procreation into marriage.” ( U.S 8th Ct. App. July 14, 2006, Citizens for Equal Protection v. Bruning )

Skemono said... I have heard it said that these rights and benefits are bestowed in order to benefit the children of such a marriage--are you saying that the children of a homosexual couple do not deserve to be raised in the same environment?

This is conflating child welfare issues with the issue of same-sex marriage. Same-sex marriage is not the only solution nor the most appropriate one in this case.

10/31/2006 7:24 AM  
Anonymous Skemono said...

Laws against unmarried cohabitation are still on the books in some states, and ironically, they apply only to opposite-sex couples. Same-sex partners can legally cohabit without a worry. This still makes the argument invoking Loving v. Virginia a moot one.

I'm sorry, I don't see why. You said that interracial couples, unlike same-sex couples today, could not cohabit, and therefore the miscegenation analogy was invalid. But if they could cohabit, and were allowed to do so for three years prior to the Supreme Court's decision in Loving, how is this any different?

First of all, the classifications of heterosexual and homosexual are not proper if you mean sexual orientation. Secondly, the classifications concern whom individuals may marry, not the couples themselves.

Of course; I apologize for my sloppy phrasing.

The effects to society due to the sexual activities of opposite-sex couples, which are the birth of babies, constitute the legitimate state interest for this particular relationship that does not exist for same-sex relationships. Therefore, the use of the classifications of men and women are the means that are rationally related to the legitimate governmental purpose of "steering procreation into marriage." ( U.S 8th Ct. App. July 14, 2006, Citizens for Equal Protection v. Bruning )

I don't really think so; even Justice Scalia--surely no fan of gay marriage--doesn't see that as a reasonable argument. From his dissent in Lawrence:

what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "the liberty protected by the Constitution," ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.

Indeed, in some states there are laws that allow certain couples (first cousins) to marry only if they are elderly or infertile.

As well, I view the decisions of Griswold v. Connecticut and Eisenstadt v. Baird as contrary to the idea that marriage is solely for procreation:

If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.

If a married couple can choose not to have children, why should a couple that cannot have children be prevented from marrying?

This is conflating child welfare issues with the issue of same-sex marriage.

The two are very much related. Your source continues to say:

By affording legal recognition and a basket of rights and benefits to married heterosexual couples, such laws "encourage procreation to take place within the socially recognized unit that is best situated for raising children." The State and its supporting amici cite a host of judicial decisions and secondary authorities recognizing and upholding this rationale. The argument is based in part on the traditional notion that two committed heterosexuals are the optimal partnership for raising children, which modern-day homosexual parents understandably decry. But it is also based on a "responsible procreation" theory that justifies conferring the inducements of marital recognition and benefits on opposite-sex couples, who can otherwise produce children by accident, but not on same-sex couples, who cannot.

The benefits of marriage are conferred so that couples will raise their children in an optimum environment. So, again, why does this not apply to same-sex couples? Why should they not be encouraged to raise their children in a stable environment provided by marriage? Same-sex parents have been shown to be just as good as opposite-sex ones.

10/31/2006 9:36 PM  
Blogger Lee J. Yatlee said...

Skemono: I'm sorry, I don't see why. You said that interracial couples, unlike same-sex couples today, could not cohabit, and therefore the miscegenation analogy was invalid. But if they could cohabit, and were allowed to do so for three years prior to the Supreme Court's decision in Loving, how is this any different?

Actually I said that "the fundamental right to marry really translates in practice as the right for a couple to legally cohabit and engage in sexual relations......."

The case of McLaughlin v. Florida concerned Section 798.05 of Florida's statutes that was a part of that state's adultery and fornication laws. While all the other sections of this chapter required proof that sexual intercourse took place, sec 798.05 required only cohabitation when it concerned black and white persons. So while the law against cohabitation was overturned, the laws against adultery and fornication remained. Sexual relations, therefore, could occur legally only within the context of marriage. This barrier is now removed, which renders Loving v. Virginia moot.

The effects to society due to the sexual activities of opposite-sex couples, which are the birth of babies, constitute the legitimate state interest for this particular relationship that does not exist for same-sex relationships. Therefore, the use of the classifications of men and women are the means that are rationally related to the legitimate governmental purpose of "steering procreation into marriage." (U.S 8th Ct. App. July 14, 2006, Citizens for Equal Protection v. Bruning)

Skemono: I don't really think so; even Justice Scalia--surely no fan of gay marriage--doesn't see that as a reasonable argument.... As well, I view the decisions of Griswold v. Connecticut and Eisenstadt v. Baird as contrary to the idea that marriage is solely for procreation:

Your use of the word "solely" distorts the issue. As stated by the Washington State Supreme Court in ANDERSEN v. SIMS,

“Marriage’s vital purpose is not to mandate procreation but to control or ameliorate its consequences—the so-called ‘private welfare’ purpose. To maintain otherwise is to ignore procreation’s centrality to marriage.”

Skemono: If a married couple can choose not to have children, why should a couple that cannot have children be prevented from marrying?

In other words, if opposite-sex couples that cannot have children or do not want children are permitted to marry, then all couples that cannot have children or do not want children should also be permitted to marry.

Of course, your assumption is mistaken here in thinking that procreation is somehow an obligation or requirement of the law for which these opposite-sex couples are made an exception. You conclude that if they can be made an exception, then why shouldn't all similarly situated couples also not enjoy that same exception.

But three things here: 1) there is no legal requirement that couples have children, 2) you are classifying on the basis of what people do not want to do or cannot do, and 3) the classifications that are pertinent to marriage are not based on the fertility, the capacity or the intent of individuals but on the gender of individuals. Opposite-sex couples effect society differently than do same-sex couples, and this effect that is the birth of children compels the state to make these classifications as the means that are rationally related to the legitimate governmental purpose that is to control or ameliorate the consequences of their relationships.

Skemono: The benefits of marriage are conferred so that couples will raise their children in an optimum environment. So, again, why does this not apply to same-sex couples? Why should they not be encouraged to raise their children in a stable environment provided by marriage? Same-sex parents have been shown to be just as good as opposite-sex ones.

It simply doesn't follow that because some parents have a homosexual orientation, then all homosexuals should be permitted to marry. I have never been able to see the logic in that.

11/01/2006 5:08 PM  
Anonymous Skemono said...

Actually I said that "the fundamental right to marry really translates in practice as the right for a couple to legally cohabit and engage in sexual relations......."

Of course. I mean, if you ignore all the 1000-plus benefits conferred on couples that are married, then sure. Not to mention the intangible effects of being societally recognized and the affirmation that your relationship is not viewed as inferior to other people's. Without that, marriage is nothing but shacking up and fucking.

And the rest of your comment is the same tired rhetoric. "Marriage is about procreation, unless you can't have children or don't want to, in which case that doesn't matter. But if you're gay then you can't marry because you can't have children." The contradictions and hypocrisy are glaring and, coincidentally enough, only work to deny same-sex couples the rights enjoyed by others.

11/01/2006 6:46 PM  
Blogger Lee J. Yatlee said...

The fundamental right to marry really translates in fact as the right for a couple to legally cohabit, engage in sexual relations and produce offspring. In short, to found a family.

Skemono: Of course. I mean, if you ignore all the 1000-plus benefits conferred on couples that are married, then sure. Not to mention the intangible effects of being societally recognized and the affirmation that your relationship is not viewed as inferior to other people's.

Someone else made a similar point saying that the "fundamental right to marry" means the right to obtain a civil marriage license and the benefits, responsibilities and status that goes along with it.

But, this is merely to say that the "fundamental right to marry" means the right to obtain the governmental rights and benefits and social recognition of marriage. That is, the right to marry means the right to .... marry!

So I took this text from Loving v. Virginia and Skinner v. Oklahoma and substituted in the place of "marry" or "marriage" the phrase "obtain (or obtaining) governmental rights and benefits and social recognition to show how preposterous this conception of marriage really is.

"The freedom to obtain governmental rights and benefits and social recognition has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men."

"Obtaining governmental rights and benefits and social recognition is one of the 'basic civil rights of man,' fundamental to our very existence and survival."

This is laughable. But if you were to substitute something of the order of living together, having sexual relations and founding a family in place of marriage, then there would be no inconsistency whatsoever.

The justices who made these written statements had only opposite-sex couples in mind, of course.

Skemono: Not to mention the intangible effects of being societally recognized and the affirmation that your relationship is not viewed as inferior to other people's.

I'm aware that homosexuals want the social recognition that their love relationships should have equal importance to those between men and women. But I say with an honest conviction and without any sense of bigotry that their love relationships do not have, nor ever will have, the social importance that the love relationships between men and women do. These have an importance that is not only subjective, but also objective simply because babies are born of these relationships.

The rest of your post is an unfair caricature of a valid argument, and it is understandable that you chose not to address the issues.

11/02/2006 4:02 AM  

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