Friday, May 16th 2008
Gay Marriage
As most of you have probably heard, the California Supreme Court has ruled (PDF) that the California constitution guarantees a right to marry to same sex couples. Eugene Volokh has one of many summaries you could find on the intertubes. I imagine there are many folks who are not particularly happy about this, so I thought I’d make a post and invite comments.
yesterday was a great day in California history. Just as it took court decisions to overturn unconstitutional laws about segregation, interracial marriage, and a woman’s right to vote, the court acted swiftly and soundly for the right for two people (regardless of gender) to marry. This is a contractual and equal protection clause matter. That’s why we have judicial review to call forth the constitution to strike down unconstitutional laws.
Comment by yuri — 5/16/2008 @ 10:59 am
There are lots of gay Republicans. In fact, I think there are more gay Republicans than gay Democrats. And many gay Republicans possess a liberal self-loathing, and choose to live dishonestly, because they want to get married. But the mainstream of this party is no longer composed of bigots. So I imagine there are many folks who are not intolerant and therefore are quite happy about this court decision, Justin. California is paving the way toward a world where a woman won’t have to find out after 24 years of marriage that her husband has had numerous gay affairs. This is a positive step.
Comment by Suzanne Craig — 5/16/2008 @ 11:45 am
i agree.
the gop should attract more gays for the party, they have high education levels, income levels (and disposable income).
Comment by Anonymous — 5/16/2008 @ 3:09 pm
I didn’t mean to suggest that there weren’t happy conservatives on the topic (I’m one), but happy commenters tend to be less interesting ones.
I’m not sure about the example of women’s suffrage as a court victory.
Comment by Justin! — 5/16/2008 @ 6:13 pm
The issue of “self loathing” gay republicans has nothing to do with the issue of gay marriage. A gay person who marries someone of the opposite sex in an attempt to conform to social norms and conceal their gayness is not doing so simply because a gay marriage is not available to them, their is obviously much deeper issues at play. I doubt guys like Larry Craig thought to themselves; “well if I can’t have a gay marriage, I’ll just marry a woman and pretend that I am straight”
Comment by Anonymous — 5/16/2008 @ 7:13 pm
i’m pretty sure you are in fact right justin
Comment by yuri — 5/17/2008 @ 8:29 am
“I’m not sure about the example of women’s suffrage as a court victory.” HAHA oh I am laughing really hard, hahaha, oh my god, haha. You should be a comedian! (sarcasm– I’m pointing this out because guys are morons and you might not know)
And as for you, Anonymous– I said this is a “positive step.” If it becomes an acceptable lifestyle over time, I believe there will be less incentive for the Larry Craigs of the world to fake their status. They’re clearly doing it for image. And if they eventually don’t need that image, and if they’re allowed to adopt, and in every other way are treated equally… I think people in general are going to be so much happier. I heard a statistic that 1 in 10 people are gay… that’s kind of a lot.
Comment by Suzanne Craig — 5/17/2008 @ 9:19 am
Not to rain on your feminist hysteria parade, but women’s suffrage was largely achieved through legislative means, not through the courts. Hence, it wasn’t a court victory.
Comment by Justin! — 5/17/2008 @ 9:37 am
By that logic, Justin, nothing is a court victory. Courts interpret the Constitution, and amendments (such as the 14th Amendment, which ultimately led to the court finding that segregation was unconstitutional) are “largely achieved through legislative means,” as you would say– but that phrase doesn’t even make any sense, because amendments are ENTIRELY achieved through legislative means. How else do you pass an amendment to the Constitution?? Is there some other method that I am unaware of? In conclusion, the 19th Amendment is no more “legislative” in origin than is the 14th Amendment. Thank you.
Comment by Suzanne Craig — 5/17/2008 @ 10:36 am
I’m not really sure what you’re arguing about, at this point. Women’s suffrage movements predate the 19th amendment, by the way. It’s “largely” by legislative means because laws have to be enforced and protected by other means.
The 19th amendment unambiguously granted women the right to vote. The 14th amendment did not unambiguously ban segregation. The conclusion that the 19th amendment allowed women to vote was known before it passed, and hence it was a legislative victory. The conclusion that the 14th amendment banned segregation was not made until 86 years after it passed (if we use Brown v. BOE as the relevant benchmark), and the conclusion was made in the courts, not by the legislatures ratifying the amendment. Such a court conclusion would be entirely unnecessary if legislatures actually agreed that there should be no segregation.
(The 14th amendment itself wasn’t necessarily a legislative victory, either. The South adopted it because they had lost a war and didn’t have much choice. It could easily be described as a military victory as well)
Comment by Justin! — 5/17/2008 @ 11:10 am
“Women’s suffrage movements predate the 19th amendment, by the way.” Well, obviously. It was a long fight. How is that relevant?
I don’t think the 14th Amendment is ambiguous at all. And everyone knew that the purpose of the 14th Amendment was to protect blacks after the Civil War ended. The only reason segregation persisted is because of deep-seated racism in the court and in the country– and what resulted were years of FALSE interpretation of a law that had been passed nearly a century earlier.
And the 14th Amendment WAS a legislative victory because the South was in the minority. That’s the whole reason the Civil War occurred! It’s because the South could not beat the North in terms of votes, because the South was in the minority. So, the South wanted to break away.
And I’m not responding to you anymore, because you are incredibly boring.
Comment by Suzanne Craig — 5/17/2008 @ 11:37 am
Not to change the subject from the wonderfully scintillating discussion of the 19th and 14th amendments, but I had some thoughts on the original subject.
I guess I’ll start off with this. Let’s take a moment and set aside a lot of the more visceral, emotional issues surrounding gay marriage. In other words, let’s stop looking at it from the point of view of the people involved - ie whether, as some would say, there is no difference between homosexual love and heterosexual love and thus both are equally valid forms of marriage; or, as others would say, that homosexuality is a sinful lifestyle.
Instead, I want to ask this question, for the sake of discussion: what, from the point of view of the state, is the reason for recognizing marriage?
Comment by Fullmer — 5/17/2008 @ 12:05 pm
There is absolutely no reason for the government to recognize marriage. It has enough problems to deal with and it has no business interfering in private lives. The people who think otherwise have a strange fear that their own marriages are somehow threatened if the government doesn’t recognize them. I guess their marriages aren’t strong enough to stand on their own. The point here is that if the government does recognize marriage, it has to recognize all marriages. Anything else is clearly a violation of the 14th Amendment.
And anyone who disagrees with me is wrong.
Comment by Suzanne Craig — 5/17/2008 @ 1:38 pm
Wait, so (although apparently I’m already wrong) it sounds as if you want the government to stay out of the marriage-recognizing business altogether?
Okay, so let me ask you, what do you think about the idea that marriage provides societal stability, along with being an institution that allows for the raising of children by two loving parents?
Is that a compelling reason for the government to subsidize/encourage marriage? Again, I’m asking from the perspective of the state, not from the perspective of any individuals who may feel their marriage is threatened by not being state-recognized.
Comment by Fullmer — 5/17/2008 @ 3:52 pm
I think the state is in the business of recognizing marriages because there has to be some standard (having a marriage license) for what is considered to be a marriage in order to confer the legal and financial benefits that one receives from being married. I also agree that the government has an interest in promoting societal stability by granting legitimacy to traditional marriages.
The issue then becomes what is defined as a marriage. If marriage is defined as one man and one woman, then denying a gay marriage is not a violation of the 14th amendment. You can’t deny someone a right that they are not entitled to. No one would say that denying a 12 year old a drivers license is violation of the 14th amendment. So who gets to define marriage? The people already voted and decided that they wanted it to be defined as one man and one woman. But obviously people are going to keep contesting this so there might as well be constitutional amendment proposed to define it once and for all.
“And anyone who disagrees with me is wrong”
Comment by Jack — 5/17/2008 @ 5:01 pm
I think that viewing it from the point of view of “why should we recognize marriage” leads to much the same conclusion. Gay couples can and do form households and can raise children in a stable home. So if you accept the government’s interest, I think it should conclude that gay couples should get married as well.
Along these lines, though, an argument could also be made that the government needs to be a lot more stringent about handing out marriage licenses, if it’s aiming for stable homes. Since it isn’t particularly careful about doing so, I’m not sure how plausible it is to view marriage as management of a government interest rather than as a right. If it’s just tossing out marriage licenses to whoever asks with the hopes that it improves the odds that some kid ends up with parents, then again, I don’t see much reason to avoid giving it to gay couples.
Comment by Justin! — 5/17/2008 @ 5:12 pm
As I stated, the main reason for the state to recognize marriage is to have a standard for what is considered a marriage for the purpose of confering legal rights and financial benefits. From this view since the state is the one recognizing the marriage, they have an obligation to define what constitutes a marriage. Traditionally that definition has included one man and one woman, and in most cases where this has been put up to a vote, the people have agreed.
Comment by Jack — 5/17/2008 @ 6:53 pm
Do you idiots really believe that people are encouraged to form stable households and monogamous relationships merely because the government “subsidizes/encourages marriage”? People get married because they’re religious, they’re in love, they’re making a big mistake, etc. People are going to get together and they don’t need the government’s help in doing that. It’s called “natural.”
And giving legal benefits to two people based on their respective genders is a violation of the 14th Amendment. And if you want to pass an amendment defining marriage as between a man and a woman, I believe that it would contradict the 14th Amendment’s plain language. So, it would probably end up in the dustbins of history like that 18th one.
Comment by Suzanne Craig — 5/17/2008 @ 9:05 pm
Suzanne, I absolutely agree with you, and I think the others here would too, when you say that people get married for reasons that have nothing to do with the government. That’s not really an issue, and I don’t think anyone’s debating it.
Again, I was asking, from the government’s point of view, why it would give this special recognition to marriage. And from the government’s point of view, what’s important is the societal impact, not the individual feelings involved - no matter how much more actually important those may be.
The government doesn’t and shouldn’t care about my happiness. It should care about promoting institutions like marriage that have a positive spillover benefit for society.
Now, from a purely societal point of view (and note that this is NOT the entirety of even the bulk of what I believe to be the most important aspects of marriage) I think marriage serves two main functions. One, to provide an environment in which to raise children. Two, to provide a more stable society - sort of the idea expressed in the old axiom that “marriage civilizes men (and women).”
Given this, some people, such as Justin!, would argue that marriage works just as well between two men or two women as it does between a man and a woman. I, along with most responsible opponents of gay marriage, would argue otherwise - for reasons which I won’t go into now because it’s late and I’m tired but which, if people are interested, I will happy to go into in the next couple days.
As I see it, this is where the debate should really come down: Does the government have a legitimate reason in distinguishing between homosexual and heterosexual relationships when it comes to their ability to fulfill the societal purpose of marriage?
Debating the issue on other points is a bit of a red herring. Of course, given the emotional importance of the issue to people on both sides, it’s an all-too-common red herring.
Comment by Fullmer — 5/18/2008 @ 12:58 am
Whether it works “just as well” depends a lot on which man and which woman. If the government is going to hand out marriage licenses like candy, as it does, one man/one woman seems a pretty arbitrary place to suddenly decide to draw a line.
Comment by Justin! — 5/18/2008 @ 2:14 am
“from the government’s point of view, what’s important is the societal impact, not the individual feelings involved -no matter how much more actually important those may be.”
Sooooo what you’re saying is that the government needs to step in because the decision to get married is based purely on feelings and not on the desire to raise children and live in a stable environment? Are you for real? If the decision to get married was based purely on feelings, there would be no reason to marry– what more validation could anyone want on feelings? The feelings are there without going through a ceremony. The fact of the matter is, I don’t need the government to recognize any relationship in my life. Nor do I want the government to recognize it, because it’s none of its business. And those out there who do feel that a ceremony is needed to “provide stability” or to “promote society” can just go to a church or temple and get that little ritual taken care of. And those who don’t feel that way can rest assured that they will find their stability even without an unromantic piece of paper in their hand saying that they possess a government-issued license.
Comment by Suzanne Craig — 5/18/2008 @ 10:03 am
“Sooooo what you’re saying is that the government needs to step in because the decision to get married is based purely on feelings and not on the desire to raise children and live in a stable environment?”
No, that’s completely unrelated to what I’m saying. You’re still looking at it from the individual point of view. From the individual point of view, it shouldn’t matter whether or not the government recognizes marriage.
When I get married, I really won’t care what the government thinks about it - other than the fact that it will be nice to, you know, file taxes jointly and all. But yeah, that really has very little to do with it. Like you, I really don’t care if the government recognizes my marriage or not.
Again, one more time, this is what I’m saying: The government should support marriage through recognition and benefits because, from the government’s point of view, it’s good that people are getting married.
Otherwise - and I want to point out again that we don’t disagree on this point, much as you seem to think we do - there’s no reason for the government to get involved.
Comment by Fullmer — 5/19/2008 @ 12:52 am
You’re making no sense whatsoever. You agree with me that people get married for reasons that have nothing to do with the government’s “recognition and benefits.” So, you agree with me that those who get married would act like they’re married with or without the government’s “recognition and benefits.” So, why precisely is the government wasting its time and resources granting that “recognition and benefits” if people are going to get together and try to form stable households anyway? Yeah, there are “spillover benefits” to society when people form stable households. But IT HAPPENS ANYWAY. That is everyone’s goal! Everyone is trying to do this! So why does the government feel compelled to “promote” something that happens with or without its “promotion” efforts? I think you’ve been missing the point of my argument, because you seem to totally agree with me on the facts of this reality. So what I’m not getting is why you continue to say the government needs to get involved merely because, from its point of view, “it’s good that people are getting married.” There are plenty of things that are good for society, and if the government was to “reward” each one, it would go bankrupt in 30 seconds– should the government reward learning how to play a musical instrument since that “culturally enriches society”? What about the government rewarding people for turning 18 years old, since now they are on their own and perhaps earning their own money? All this good stuff from the government’s point of view happens ANYWAY. There is no need for the government to promote anything– it happens ANYWAY. Do I need to say this again??
Oh and I think there are plenty of people out there who disagree with our perspective on marriage, because I have lots of gay friends on facebook who are truly ecstatic about the court’s ruling. And you know what? I am truly happy for them. And it has nothing to do with government’s “promotion” of marriage– instead, it has to do with the fact that when the government grants legal benefits to two people, it must do so regardless of their respective genders. I said this before.
Comment by Suzanne Craig — 5/19/2008 @ 10:52 am
Nice try, but your analogies both fall a bit short. Learning to play a musical instrument is often subsidized for that very reason, through school music programs. As for turning 18, that’s not a choice. (And also, I’ve yet to see evidence that it’s beneficial to society.)
The point is this: government subsidizes good choices all the time. Not because it necessarily makes a difference on an individual level (though it may, in some cases) but because it makes life easier on those who make those beneficial choices.
We’re apparently not making much headway on this issue, so I want to ask you about something you said earlier. What exactly in the 14th amendment makes it so that “when the government grants legal benefits to two people, it must do so regardless of their respective genders”? I’m a bit of a dabbler in con law and that’s not immediately obvious to me.
Comment by Fullmer — 5/19/2008 @ 12:22 pm
The government’s job is NOT to make life easier for those who make beneficial choices. Making a beneficial choice naturally results in “benefits”– obviously!!! Otherwise it wouldn’t be a “beneficial” choice! I’m not disputing that the government does this. But simply because things are a certain way doesn’t mean that they should stay that way. As I said, the government has enough issues to deal with as it is. If something works on its own, leave it alone!
And my two analogies do not fall short. I don’t see how it’s relevant that turning 18 isn’t a choice– my point is that it’s natural– and it’s certainly beneficial because many people begin contributing to the economy at that age rather than living off their parents. And I wasn’t referring to school music programs, I was referring to the decision to learn to play an instrument. But whatever.
Moving on, the 14th Amendment states in part that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” I think it’s crystal clear from these words that the government can’t give a right or privilege to one person over another person on the basis of gender. There can be differences on other bases, but not on race/gender/etc. I don’t really know what else there is to say about this. It’s just as obvious as the fact that segregation violates the 14th Amendment. Separate but equal is not really equal– the same goes for marriages vs. legal partnerships.
Comment by Suzanne Craig — 5/19/2008 @ 1:05 pm
Okay, but how is recognizing heterosexual relationships but not homosexual relationships denying someone a benefit based on gender?
Everyone, man or woman, has a right to enter into a consensual marital relationship with someone of the opposite sex. That may be many things, but one thing it’s not is denying someone a benefit based on gender.
Comment by Fullmer — 5/19/2008 @ 1:38 pm
Oh yes it is! If Woman #1 wants to marry Woman #2, and the relationship would be recognized if Woman #1 was a man, then that is a benefit that is denied to Woman #1 based on Woman #1’s gender.
Comment by Suzanne Craig — 5/19/2008 @ 1:55 pm
I see what you’re saying though. You’re saying that the “benefit” of marriage is broadly available to Woman #1. However, no one cares if they have the right to marry “someone.” That is a totally worthless privilege/right. No one wants it! The reality is that people care if they have the right to marry the person they love, a person of their choosing. And if that particular relationship is not recognized based on the gender of that person, that’s a violation of the 14th Amendment.
Comment by Suzanne Craig — 5/19/2008 @ 1:58 pm
I don’t know, Suzanne…I think when you start talking about a “right to marry the person you love” then you enter into a pretty shaky area. I know this isn’t what you mean, but when you use that expression you’re open to a criticism that I once saw phrased thusly: “Well, I’m in love with Cameron Diaz, do I have a right to marry her?”
Anyway, you and I both have better things to do than to keep checking this blog (I really should be studying for my 8 AM final tomorrow, or at least sleeping) so I’ll just once and for all state for the record the grand summation of my arguments here.
1) Marriage, from the government’s point of view, is all about the aggregate societal benefit of the institution.
2) Defining marriage as between one man and one woman is not arbitrary, but due to the many differences between men and women, the best way of defining marriage as an institution so that it does achieve those aggregate societal benefits. (I realize I haven’t gone into my reasoning behind this; if you really want to, we can.)
3) Given this, and the government’s definition of marriage as a consensual marital relationship between two people of the opposite sex, the “right to marry” is construed as the right to enter into a marriage with someone of the opposite sex. This right is available to anyone, regardless of gender or, in fact, sexual orientation. (Now, you may argue that it’s a lame right for some people based on their sexual orientation, but that’s a different matter and immaterial from the government’s point of view.)
I think it’s especially important to note, with regard to point 3, that by defining marriage as between one man and one woman the government is in no way impinging on the right to engage in a relationship that doesn’t fit that model. It’d be one thing if the government arrested two men for living together; it’s quite another if it doesn’t call their relationship marriage.
Comment by Fullmer — 5/20/2008 @ 12:44 am
This discussion of marriage is entirely premised on an idea of marriage that is rather new–that marriage is between people who love one another. The roots of marriage likely have nothing to do with love, and more to do with arrangements between families, based on economic, social, and political factors.
It is not licensed by the government because of some “aggregate social benefit”–I think some real work should be done here to figure out when governments actually started officially issuing licenses in US history; there is probably a lot based on common law, which meant that a government recognized ecclesiastical marriages, but did not pro-actively have the decision on whether or not people were married. Only certain legal rights of women, such as the right to buy own or sell property (which married women in the US did not have until 1848, starting with New York), required knowledge of that fact–and later things like tax credits, which likely are very recent innovations.
Our conceptions of marriage are not arbitrary, but are based on long-standing traditions. That doesn’t make them right, it just makes them traditional. Granted, same-sex sex is not a new phenomenon, and has a long history in Europe and the United States. I think it is only a changing notion of marriage to mean something regarding companionship, love, and mutual trust rather than an economic arrangement that has made same-sex marriage relevant. The only conceivable reason to oppose it is (1) out of beholdenness to tradition and (2) out of fear of normalizing same-sex sex. Both are bad reasons, and probably only explicable if you resign your position to theological morality.
And, Fullmer, you should probably brush up on your American history. Texas’ anti-sodomy law was not struck down by the courts until 2003. Except in places like San Francisco, Chicago, and New York, it’s not exactly something to be taken for granted that people who engage in same-sex sex are free to do what they please.
Comment by yaman — 5/20/2008 @ 7:41 am
If I’m not mistaken marriage licenses in the United States first came into being after slavery. Ex-slaves and whites needed permission to marry eachother. Thus, the grating of permits. From what I have read, marriage between whites or between blacks was a right, but marriage between races was an immunity granted case by case.
Also note that Section 1 of the 14th amendment does NOT mention “rights.” “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…”
If marriage truly is a “right,” then one needs not ask permission from the government. You only need permission for something that is a privilege. If you have the right to something (life, property, marriage, arms, etc), then you don’t have to ask permission from the government. This confusion between rights and privileges is widespread and destructive.
Comment by Anonymous — 5/20/2008 @ 1:19 pm
Anonymous: Is there actually any scholarship about this distinction between right and privilege, or was it invented on a talk show? In any case, the “right” people are alluding to is equal protection under the laws, specifically in this case, marriage laws.
Comment by yaman — 5/20/2008 @ 6:42 pm
Actually marriages between ethnicities or races, per state, were legislated for much of the U.S. development period. Since the founding colonies, Marriage was of most important. It was not lightly discussed or “free” for people to chose who and where. It has only been after 1950s, and later the 1060s Rights revolution that marriages became much different than they were in U.S. history. State and Federal have been into peoples’ lives more than the average citizen knows. If anyone of you had any clue about U.S. history you would be talking about the Miscegenation laws in US history. US supreme courts had stringent rules, not only between blacks and whites but a host of other races and ethnicities. So same-gender marriage is just part of the new rights revolution. Next decades the issues will be animals and humans and so on to the bizarre. The point is government, be it federal or state has always been into people’s lives. And Yaman, The Ottoman Empire had many homosexuals, including the dominating race/ethnicity. It is not only Europeans and westerners – although nice try in framing a condescending picture.
*Not the same anonymous that posted, this is the first on this thread.
Comment by Anonymous — 5/20/2008 @ 9:29 pm
I am aware of that, Yaman, and I support the decision in Lawrence v. Texas, because I do think the government should stay out of people’s personal lives as much as possible.
That’s why I think that love and companionship, primary components of marriage though our society may hold them to be, are not valid reasons for the government to get involved in marriage at all. What I’m arguing is that the societal benefit of having men and women marry is a reason for the government to recognize marriage - even if this wasn’t the original reason.
Comment by Fullmer — 5/20/2008 @ 10:18 pm
“Next decades the issues will be animals and humans and so on to the bizarre.”
the slippery slope argument is the fastest way to kill one’s credibility
Comment by yuri — 5/20/2008 @ 11:18 pm
Fullmer: I can’t help but feel that that is just a way to rationalize excluding same-sex couples from marriage.
Anonymous @ 9:29pm: Thanks for the clarification, and of course there was same-sex sex in the Ottoman Empire. I wasn’t trying to be “condescending” (I don’t think there’s anything wrong with that), I was just trying to point out that it existed in Europe and the US long before there were calls for same-sex marriage–and, my intuition is that this had less to do with openness about the fact, and more to do with a changing idea of marriage.
Comment by yaman — 5/21/2008 @ 9:36 am
This whole discussion has gone way to far. Gays should not get married because it is not natural.
Comment by Anonymous — 5/22/2008 @ 11:14 am