Gay Marriage Again

I’ve been chewing on the recent events on this from in an Francisco and New Peltz, NY (just a train stop to me up to now), and thought I’d take a few minutes and go set out why these make me so happy, and what I think they mean.

Just for openers, as I said a while ago, I’m all for gay marriage, both as a matter of abstract moral conviction and out of direct personal experience (and no, I’ve never been denied the right to marry because I was gay…).

And I’m convinced that by the time Littlest Guy marries, it will almost certainly be legal. But as I noted, the process to get there is going to be messy, erratic, and anything but simple.

Here’s the image I have in my mind when I talk about it; as a society and as people, our values are complex, and often on some level, self-contradictory. I don’t see that as wrong, I just see it as human. At the highest, simplest, most public levels, the values tend to align. But deeper, it looks like the strata underneath California – more faults and temporarily stable dislocations than solid bedrock.And that dynamic system changes over time in response to events, to changes in belief or behavior, to a kind of social evolution.

As a believer in punctuated equilibrium, I also see that as a metaphor for patterns in societies.

Which brings me to Gavin Newsome (who looks like he is going to rival Joe Alioto and Wille Brown as a Bay Area political figure) and his act of civil disobedience – because it really can’t be characterized in any other way.

I’m really pleased that he’s doing this. I think that this is going to be remembered along with the sit-in at the Woolworth’s lunch counter. These are events that are among the first signs of real slippage on those faults as society aligns itself anew.

That’s how social change happens. A small event that would have been lost at another point in history, manages to set of a wider shift – because the underlying forces were in place to make society receptive to it.

Two years ago, it wouldn’t have had the same effect, and two years from now, it would have mattered less.

I believe that the gay community needs to keep fighting for this, and when the victories come – like this one – cherish them and use them for fuel to keep going for the rest of the fight.

And, most important, to realize that while those who oppose this are wrong and that this is a struggle – that hating and demonizing them is not going to make victory come sooner, and in the end will make the battle less worth winning.

51 thoughts on “Gay Marriage Again”

  1. Well, just try to be honest about the fact that you are pushing changes that are going to be ‘messy, erratic, and anything but simple..”

    I’m getting pretty disgusted by the claim I’m hearing that REPUBLICANS are creating a “divisive wedge-issue” where all was harmony before…

  2. Unfortunately, messy doesn’t even begin to cover it. If each law affected by marriage is a variable that has been calibrated over time to work as best as we could determine in a trial and error empirical sort of fashion, then civil marriage itself is a problem with literally hundreds of variables, running close to a thousand and that doesn’t even begin to ferret out the indirect effects like the nondiscrimination implications, including tax status of churches that would refuse to do religious gay marriage.

    Such problems can be solved, of course. That’s how we got to a status where marriage became a high hundreds of variable system. But the vast majority of those variables were set and calibrated through the political process and through legislative action. The anglo-american common law system with its love of precedent means that a few black robed judges are inductively taking a stab at an enormously complex problem and changing all 800-1000 laws at once. What’s the chances that this is going to be anything but a disaster? None at all, in my opinion.

    The only real suspense is what kind of a disaster is it going to be? Is it going to be the sort of temporary disaster like prohibition was or is it going to be a more permanent degradation of our national culture and institutions?

    It is unmitigated arrogance to think you can solve such a complex problem without even identifying all the variables. For instance, if you are a heterosexual who was married in San Francisco recently, sending a copy of your marriage license is no longer sufficient to get your name changed by the Social Security Administration. I can’t imagine anybody thought of that little inconvenient wrinkle down at San Francisco’s City Hall but that’s the sort of thing that happens when you go off half cocked.

    In the end, I believe that gay marriage will not become the general law of the land and any jurisdictions that adopt it will eventually look back at their adoption as a fit of madness and stupidity as they pass legislation undoing their error.

    This is not for religious reasons (though those exist and are real) but for eminently secular reasons that will come out in reasoned debate in the legislatures of this nation, where such things ought to be resolved. It is certainly possible to argue that gay marriage is not proper for completely secular reasons and I generally do so, though as a conventional catholic I also subscribe to the religious reasons as well.

    Some bigots believe that religious objections render secular argument suspect, as if describing reality can only be done in a theology free zone. I think that even nonbelievers have an obligation to parse through their countrymen’s arguments to see whether they are true, no matter what faith system they have.

  3. TM:

    Can I quote you on that?

    A.L.:

    I checked out the Trib article, and wasn’t very impressed. Sure the institution of marriage has undergone enormous evolutionary changes, but they were all calibrated to the basic requirement of producing “new start” members of that who held it’s values in high esteem and had the other basic social skill set necessary to maintain the culture. Other than for a small percentage of gays who happen to have children, it simply doesn’t apply.

    There are a couple of questions or thoughts I’ve been considering to help me suss this out. The first is, what if one morning most of the gays in the world woke up to realize that they had absolutely no interest in borrowing a heterosexual institution in order to re-dramatize a set of emotional fixations they really had little interest in making their own on a permanent basis? The second thought is, what if what’s driving the angst to morph marriage into a gay institution (at least partly) really comes from a desire by straights to “mold gays in their own image” (which requires projecting their own desires onto the gay community) so they can simply see them the way they see themselves, without bothering to comprehend a damn thing? It’s a sort of lazy “social correctness.”

    Very few people would have predicted an enormous family dissolution would come about as a result of an easy and cheap method of birth control, yet that’s precisely what happened. And it happened more or less simultaneously all over the globe. (With the exception of Japan, which only legalized the pill in 1998.) And it was all due to indirect effects and interactions that were basically unintended consequences.

    Of couse, no one would have said we shouldn’t introduced the pill, because the benefits almost certainly outweigh the costs. But what are the real benefits here, and what are the costs? Have you really any idea at all? I sure don’t. Not much, anyway. All I know is that we’re about to perform open-heart surgery on a culture, thinking we’re doffing a new hat.

  4. “what if one morning most of the gays in the world woke up to realize that they had absolutely no interest in borrowing a heterosexual institution in order to re-dramatize a set of emotional fixations they really had little interest in making their own on a permanent basis? The second thought is, what if what’s driving the angst to morph marriage into a gay institution (at least partly) really comes from a desire by straights to “mold gays in their own image” (which requires projecting their own desires onto the gay community) so they can simply see them the way they see themselves, without bothering to comprehend a damn thing?”

    You don’t actually know any long-term committed gay couples, do you?

  5. As a hetero, I feel it is the worst thing in the entire world if my wife’s social security card has the wrong name on it, and I’m willing to amend the very founding documents of our country to ensure this never ever happens.

    *snort* *guffaw*

  6. Armed Liberal, no where in your argument do you discuss where to draw the line on accepted behavior. We as a society make decisions on what is acceptable and what is not, rightly or wrongly. Right now, gay marrage is not considered acceptable, nor are a host of other sexual acts.

    You seem to imply in your writing that once gay marrage is legalized that it will be the end. Everyone will move on and be happy. This belief is in error. Part of the gay movement’s struggle for gay marrage has been to strip regular marrage of any special meaning. Sex and love are the only qualifiers to them. This same equation can be applied to many other sexual relationships that I suspect even you would oppose, but for you to be intelectually consistant you must accept, even champion them. Is this what you want? How and where do you draw the line on acceptable social behavior?

  7. Setting gay marriage aside for a moment, I’d be a lot more comfortable with the gay community if it would have the common decency to at least go to the voters through their lawmaking bodies. The cheap and squalid method of bypassing the country by going to court will not achieve a consensus, AL. You should know that.

    Unless, of course, you believe that Roe v. Wade produced an instantaneous consensus on abortion.

    The civil rights folks didn’t make this mistake. After Brown, King and his people understood that they had to codify the advances of the black community in law. Thus, after much debate and sacrifice, the civil rights act of 1964 was enacted. It took them ten years to get from Brown to the CRA, but they did it the right way.

    Forty years on, there is no serious constituency in favor of segregation of the races.

    The same cannot be said for abortion. Nor, unfortunately, can it be said for gay marriage. The gay community is making a serious mistake. Going to court will not make things “all better”, especially since the gay community appears intent on unilaterally redefining marriage without so much as a by-your-leave to the rest of society.

  8. Oh yeah, one other thing. The demonization of the conservative opposition to this has already begun. This trend was predictable as well. You can’t cover your bases by asking everyone to be polite, AL, especially since Sullivan has been so bloody over-the-top about this. His contention that Bush has declared war on the gay community is a manifest untruth, and did nothing to help the debate along.

  9. Armed Liberal, no where in your argument do you discuss where to draw the line on accepted behavior. We as a society make decisions on what is acceptable and what is not, rightly or wrongly. Right now, gay marrage is not considered acceptable, nor are a host of other sexual acts.

    I’m not A.L. but I’ll take a stab. Individuals draw that line, as long as it doesn’t interfere with or impinge of the rights of others. And, of course, marriage isn’t a “sexual act” it’s a social institution. I think we have to consider the consequences of amending that social institution, is all.

    Furthermore, I just tend to see the inherent condradiction in making the argument, as does Andrew Sullivan, that same-sex marriage is a “right,” when he bases the argument for expression of that right on its particularistic implementation. I have no problem with its implementation locally in MA or CA, if it’s a matter of public policy over which the public has some say. But clearly that’s not the strategy adopted here. He argues that FF&C applies, but then claims the “right” in CA and MA on the basis of a judicial ruling and the usurpative politically motivated actions of a public official which, by definition, remove it from the realm of public policy and place in the realm of “inalienable rights.” He even says as much, on his blog.

  10. Re:

    He argues that FF&C applies, but then claims the “right” in CA and MA on the basis of a judicial ruling and the usurpative politically motivated actions of a public official which, by definition, remove it from the realm of public policy and place in the realm of “inalienable rights.”

    I meant, of course, that he argues FF&C doesn’t apply, based on the public policy exception.

  11. Armed Liberal – The Trib article is completely nonresponsive to the concerns I listed. You do not get a love, societal acceptance, or friendship license from the government because all of those things are not the government’s business. Other countries do it a bit better by not seconding priests and ministers as agents of the state. You go off and do all the economic stuff at city hall and then do the religious stuff at your church or synagogue. Atheists just skip the second part. There’s no reason gays can’t just skip the first.

    What I’m talking about is hundreds of laws that form a complex whole across jurisdictional lines and across various parts of the law. You don’t adjust those by a one guy in a set of black robes and have a prayer of doing it right. Nine people in black robes isn’t much better.

    Scott – sure quote me all you like. I’ve got plenty more where that came from on my blog. At the present time, I have 36 entries that match the search term, gay marriage.

    Undertoad – There are somewhere between 800 to 1000 laws in play here. I picked a simple one that doesn’t carry a lot of baggage, is easy to understand, and an unexpected consequence. If I would have picked a different one, say one on marriage and adoptions, we’d be hip deep in a statistics war right now and the thread would be thoroughly hijacked and much more heated.

    Why is it you don’t give a damn about the majority of marriages in San Francisco county and the doubts that their paperwork is now under? If Pat and Kim (or is it Kim and Pat?) are married in San Francisco, their license will get special scrutiny across the world. Is that fair to them? Why?

    Brian – It is not just acceptability that is in play but much more practical things. Over the next thirty years, we’re going to dance on the knife edge of bankruptcy in our social safety net, Medicare and Social Security being the most at risk. Even small changes in aggregate fertility could change that equation. I happen to think that homosexuality is not an acceptable behavior. But even if I thought it was acceptable, it would make no difference to its ability to shift the balance on fertility and be the straw that breaks the camel’s back when it comes to our intergenerational social contract.

    We’ve got major tax and spending programs written into law that depend on a certain minimum rate of population growth. Besides all the other things that marriage is, it is a factor in all those policy decisions. You can take away the encouragement to procreate but you also have to take away the taxation and spending programs that depend on those incentives being there.

    In a way I’m quite conflicted because I’m a minarchist and I want those programs to go away anyway. The thing is, I’m a practical minarchist so I want to disassemble things in such a way to minimize, not maximize disruption.

    In my ideal world, the state would not enter into marriage because it would have no societal responsibilities that required its involvement in the institution. But to get from here to there, you have to disassemble an awful lot of the present State before you can get the State out of marriage responsibly.

  12. I am really looking forward to gay marriage being made the imposed law of the land. Especially, since once gay marriage is made common, there will be incredible pressure to enforce this new tradition into the schools. When kids learn about family structures, they will be forced to learn about gay relationships. In health class, we now teach children about hetrosexual relationships. With the legalization of gay marriage, we will be compelled to explain to young kids about how gay sex works. I can hardly wait for parents to hear what the teacher told them about how it is perfectly normal to have gay sex. Combine this with the Cal. Supreme Court telling the Catholics that they have to pay for birth control and abortion under their health plans and you have the complete destruction of thousands of years of tradition in just a couple of months. Good work!!!!

    I mean, it worked so well in the Scandanavian countries. Check out this story in the SF Chronicle from over the weekend. http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2004/02/29/EDG8F5918A1.DTL

    The left thinks this is all well and good. Laws and traditions are worthless if they impinge on my desire to do whatever the hell I want. Of course, they assume that their destruction of the rule of laws is great because they are in the driver’s seat. What happens when things change and they are no longer in charge? The very tradition and laws they wish to trample are the same set of laws which has allowed them to get to the position they are today. Gavin Newsom is no hero, just another cheap politician deciding that the laws don’t apply to him. Roy Moore was wrong to force his religious views on the people of Alabama, even though they agreed with him. Why is Newsom so brave for forcing his views onto the people of California, especially since there was a specific proposition on this subject and the people spoke clearly against gay marriage?

    Finally, I know this drives people on the left of this issue crazy but I have to bring it up. If it is OK for two men or two women to get married, why is it wrong for two men and three women to get married? There is more history for polygamous marriage than same sex marriage. Don’t force your tired one-on-one relationships on me, man!!! Especially since we have now removed all links between marriage, child-rearing and sex, I am starting to think about marrying my dog. She has been better to me than any man or woman and I would be just crushed if I was in the hospital and I was not allowed to see my canine companion. As a Libertarian with a sense of humor, i can hardly wait to see what kind of stupidity this “civil disobedience” will produce.

  13. It doesn’t matter which law you pick, because your whole argument is a massive straw man. Any state court or legislature can cut through that gordian knot any time they like.

    Nobody gives a crap because they know it A) has absolutely no impact on them, and B) is simple civil disobedience and not the end of the freakin’ world.

  14. Mike A, explain to me where your canine is legally able to sign her end of the binding contract. In hat court will the paw print stand up?

    In a free country, any two sane adults should be free to agree to any contract they can devise within the letter of the law.

  15. Gavin Newsom, who looks like he is going to rival Joe Alioto and Willie Brown as a Bay Area political figure

    A.L. – I think this is a bit of an understatement. There is no question in my mind that Gavin will be running for president in 8 to 12 years. This is just chapter one of the whole scenario.

  16. There is a long discussion of this on Daniel Drezner’s blog, though much of it pertains to the politics of President Bush’s decision. There is still quite a bit on the merits of the subject. Here is the best post on the politics, and my final two on the merits.

    A.L. – take special note of my comments on judicial administration as a driving force for separation of the civil aspects of marriage from the spiritual and religious aspects.

    http://www.danieldrezner.com/archives/001121.html

    BEST POLITICAL POST
    “Yes, Bush believes that an amendment is needed to preserve marriage as being between a man and a woman. From what I have heard from friends who are more than a little bit involved in the BC04 operations, they are not really sure how this is going to cut. The most obvious gains would be in the “Red” states that Bush is pretty much a lock to carry. They say that they do not know how this is going to cut in close Red states like, say New Hampshire, where a lot of Bush voters in 2000 define themselves more as libertarians than conservatives or loyal Republicans, nor do they think this is going to help them at all in some of the close “Blue” states like Minnesota, which they felt was trending Republican and where they thank there is a fairly significant moderate swing vote. I am told that as you move up the chain to the higher level gurus, no one thinks this is going to win the election for Bush, most think it will wash out as neutral, and a few think they could lose the election over it if the economy does not significantly improve. I am also told that, with the Massachusetts ruling, the pressure from the base was becoming inexorable, and that they felt that not endorsing the amendment was definitely going to hurt them. Thus, they made a tough call and came down on the side that you would expect, the one less likely to hurt them. In other words, this is about typical for every campaign, which has to make at least one high stakes decision that could cut either way, but which they can’t kick down the road. Dan Drezner may have some sources that he could cross check this with; what I have said comes from three different people, some of whom differ a little bit on their analysis, but none of whom would strongly disagree that what I have written is a fair summary.

    posted by: Daniel L. Merriman on 02.24.04 at 10:08 PM [permalink]”

    MY FINAL TWO POSTS

    “The _Economist_ article crystallized some of my thinking on this subject, and it’s not good. To the extent the _Economist_ is correct that “civil unions” imperil marriage, we may have a Greek, aka inevitable, tragedy coming.

    The arguments Stanley Kurtz raised against gay marriage really apply to civil unions, not to gay marriage per se. That’s why the _Economist_ argued in favor of gay marriage and against civil unions. I tend to doubt the _Economist_ here, because the outcome it sees is happening absent civil unions. It is endemic in some ethnic/cultural groups (urban blacks, poor whites of Scots-Irish backgrounds (“Okies” in California), etc. We’d had civil unions in California for several years and the same old undesirable trends haven’t changed in the least.

    But this is pertinent to my point earlier that the lawyers here are agreed (my wife has a JD though she hasn’t practiced in 16 years) that there will be an inevitable separation of the civil contract aspects of marriage into civil unions separate from a purely religious institution of marriage.

    We are agreed on this because lawyers draft the laws, and do so to make them easier for the judicial system to administer. For examples of such issues, see David Frum’s questions for Andrew Sullivan here –
    http://www.nationalreview.com/frum/frum-diary.asp.

    The judicial system has already resolved the child custody issues Frum described, and many of the contract & probate issues, but he still has a point. It will be much easier for judges and lawyers to resolve disputes if the contract & child custody aspects of civil unions are uniformly enforced in every state. I mentioned above that the FMA’s presently draft impacts the Uniform Custody of Minors Act.

    This creates considerable pressure to resolve the conflicting pressures of Christian bigots, gay rights groups, “equality before the law is the only cognizable objective” groups, plus state legislators, Congressmen & Senators who desperately want to avoid a political issue which can only hurt them, by separating civil unions from religious marriage.

    IMO that will happen. If the _Economist_ is correct, this is the worst possible outcome.

    It appears that Christian bigots are using the undesirable aspects of civil unions to argue against gay marriage, while gay marriage advocates are using civil unions as a stepping stone towards gay marriage.

    The solution is to meet the bigots head-on, which is where Congress comes in. That just won’t happen. So we may get a compromise of the worst of all sides.

    I tend to doubt that, though. Most to almost all California gays who make civil unions want marriage, not civil unions. They could make contracts before – all civil unions did was regularize the process and affect insurance & governmental bureaucracies (visiting rights for the dying, etc.).

    So why do gays prefer marriage to civil unions? Might it be because of the former’s spiritual nature? Though my wife just pointed out that spiritual values are not something a government can provide.

    posted by: Tom Holsinger on 02.28.04 at 07:09 PM [permalink]”

    “Scott & TexasToast,

    Concern about adverse effects on the vital institution of marriage, due to the subsequent effects on childrens’ social development, is IMO the only valid grounds for opposing gay marriage and/or civil unions. There is overwhelming data that children are best raised by their birth parents in intact marriages.

    But there really are a honking lot of Christian bigots on the issue, of whom the smart ones play games with statistics to support their biases. I am familiar with such games, starting with the Nuclear Winter hoax. I did the scientific detective work on that, gave the evidence of Sagan’s overt falsehoods about radiological effects to S. Fred Singer and he used it to ruin Carl Sagan’s scientific career. Sagan had to start a new one as a writer, chiefly of science-fiction. His non-fiction __Demon-Haunted World_ had a most ironic title given the reason for his career change.

    We’ve since seen lots and lots of junk science, but I was one of the first to do something effective about it, and that was twenty years ago.

    I am very skeptical about the arguments against gay marriage given the biases involved. Stanley Kurtz is one of the few I respect – while his _Weekly Standard_ article has major flaws, he is at least looking at hard evidence and trying to find patterns.

    posted by: Tom Holsinger on 02.29.04 at 08:40 PM [permalink]”

  17. Undertoad – Ah, you declare something to be a straw man and without further argument, poof! it’s a straw man. How do you work that magic, Undertoad?

    Sure, a legislature can simply undo all laws that require an increasing population over time. Pop there goes Social Security, poof there goes Medicare. It’s Undertoad magic, cutting the gordion knot man. Do you dig it?

    Polygamy, shortages of marriageable women, its just free market competition, really. Cut the gordion knot and zap, it’s all good with no thought and planning necessary. Don’t mind the revolutionaries who don’t have a prayer of getting a woman.

    Hey, I’ve covered four or five of the 800. And it was all a snap thanks to the wise words of the toad. I never realized that legislatures are incapable of screwing up the law and could solve any problem, no matter how complex. They just have to cut the gordion knot.

    Genius.

    Tom Holsinger – If there are bigots on the right side of an argument, does that put you on the opposite side just to piss them off? The big, irreducible problem of monkeying with marriage like this is, you’re right, the children. Both sides have their statistics manipulators. If you were doing this properly via a judicial route, you would have a special master appointed to find out the facts regarding the relevant issues. No such special master has ever been appointed in such a case so basically the judges are deciding on two versions of highly spun facts with no ability to independently verify which set is closer to the truth.

    This is madness.

  18. “The left thinks this is all well and good. Laws and traditions are worthless if they impinge on my desire to do whatever the hell I want.”

    I couldn’t have put it better myself. My only disagreement is that that attitude is not unique to the left. Right wing libertarians say much the same thing. It’s typically American, or at least typically American since about 1968. Abortion was made legal by efforts of the left, but it’s here to stay despite anyone’s efforts because it’s just too damned convenient for too many people. God forbid men should take responsibility for the lives they 50% create or that women should lose their figures for 9 months. Gay marriage will happen and irreversably because Americans will say “Hey, if they can’t do whatever the hell they want, I may not be able to do whatever the hell I want.” All I can say is what Alexander Pope said in the _Dunciad_:

    Lo thy mighty empire, dread Chaos, is restored
    Light dies before thy uncreating word.
    Thy hand, great Anarch, lets the curtain fall,
    And universal darkness buries all.

  19. TM -

    …including tax status of churches that would refuse to do religious gay marriage.

    OK, that’s the only specific law I can find in your quotes, and since it’s a hanging curveball, let me be the first to swing…what’s the tax status of Orthodox synagogues that refuse to marry reform Jews? The EU may be trying to outlaw preferential employment by church-based organizations, but there’s nothing like that (yet) here. Try again with a real example? Yes, it’s a complex issue – on many fronts – but so is pretty much any policy change.

    Brian-

    Part of the gay movement’s struggle for gay marrage has been to strip regular marrage of any special meaning. Sex and love are the only qualifiers to them.‘ Sorry – what else is there in marriage? I know four married couples who have no kids, and never will. Are their marriages somehow ‘less’ than one of my failed ones? TG and I won’t have any more kids, (although we are/will be raising mine) does that make our marriage a sham? I don’t see how two people making a commitment to each other – and living up to it – does anything to hurt my marriage except make me ashamed that I haven’t been able to do a better job of it.

    Scott-

    Actually I have a very close gay friend who is in an extremely committed polygamous relationship with two other men, and hasn’t the slightest interest in “gay marriage.”‘ And I know seven straight people who have been living together on a commune for twenty years, fuck each other, and own everything in a corporation. so what? I know a woman lawyer who goes to swinger’s conventions and has no interest in marrying, either. Your point…??

    And you go on further to suggest:

    …but they were all calibrated to the basic requirement of producing “new start” members of that who held it’s values in high esteem and had the other basic social skill set necessary to maintain the culture. Other than for a small percentage of gays who happen to have children, it simply doesn’t apply.‘ Scott, I think you’re setting up your axioms to get the result you want. Marriage is about more than reproduction, and it’s value to society – of stabilizing social relationships and getting people to make long-term commitments – goes far beyond child-rearing.

    More later.

    A.L.

  20. TMLutas: The only real suspense is what kind of a disaster is it going to be? Is it going to be the sort of temporary disaster like prohibition was…

    Seems like an odd choice of examples. Prohibition was a disaster because it tried to restrict liberty for moral reasons and, like most government efforts at social engineering, had unintended side effects (just like benefits offered to married couples cause some people to get married for purely economic reasons). Seems like Prohibition is more akin to the FMA than allowing gay marriage.

  21. TM,

    Bigots _start_ pissed off. Use of the term “bigot” in this subject markedly reduces the incidence of biblical quotations/citations as a form of argument. This is not the place for a discussion of theology or personal sexuality.

    While I agree with A.L. about keeping down the hate, a mild degree of hostility is desirable concerning the untrivial proportion of posters for whom this subject is an opportunity to vent their issues. Their objective is psychological relief, which is inhibited by mild hostility such that they go elsewhere.

    And I view this much more as a paradigm issue. People on the wrong side of a paradigm shift can’t be convinced – you can only wait for them to die. That this subject involves something like a paradigm shift is evidenced by the amazing generation gap shown in public opinion polls.

    OTOH, the institution of marriage is clearly getting shaky and there should be a discussion of events in progress which impact it for good or bad. That some have religious motivations for opposing gay marriage doesn’t detract from whatever worthy points they make – their motivation just makes it harder to spot the good points amongst all the crap. And their criticism of the arguments of the proponents of gay marriage will eliminate the latter’s weak points and generally illuminate the discussion.

    But it’s a discussion of social policy, not theology or personal sexuality aka projection and denial.

  22. I declare something a straw man when it IS a straw man. Instead of talking about rights, and people, we’re talking about state-by-state law interoperability as if it has never been an issue before and never will again. We’re talking about judges becoming political as if judges have never been political before. We’re talking about bestiality. Anything to avoid talking plainly about the issues of simple gay marriage and civil rights.

    As if this issue were so important that, by gum, if the people of Texas are forced by some strange conflagration of state issues to have to actually acidentally *recognize* a pair of lezzes for a moment, why the entire state’s business would come to a screeching halt.

    Plainly put: if Texas doesn’t like what Vermont does, that’s Texas’s problem. It’s not for them to tell Vermont how to act.

    Cos that’s how we do it in a free country.

    “Oh my effing christ the neighbors are gonna marry their dog!” If you want to pursue this crapola of some imagined horror future, at least connect the dots for how we get from here to there so we can laugh at all of your givens. Are you literally afraid that the hets are going to be converted and stop fucking leading to population reduction?

    You got baggage man. A whole set of Samsonite.

  23. Just wanted to chime into this discussion to speak my piece on it.

    I tend to oppose gay marriage in the US if for no other reason than that I regard the current movement (which I don’t conflate with homosexuals, especially given how many of these folks are straight) driving it as having a fairly open contempt for the democratic process (and, in my view, impacted in no small part by the writings of blogosphere’s most famous proponent, my own religion as well) – with all of this talk about reliving the civil rights movement (which, IMO, cheapens everything that was ever done in the name of black equality unless anyone here actually believes that Mayor Newsom is going to face any serious repercussions for his actions the way that any of the real practicioners of civil disobedience did), little has been said of the actual laws and legislating that went on during the period, little details like the actual Civil Rights Act that was passed by Congress in 1964. The libertarian embrace of this is likewise extremely perplexing to me given that the stated libertarian belief as I understand it is that they want less government interference, not more, in their daily lives. How this translates into wanting the government to convey various benefits and entitlements over to an additional group of people is beyond me – wouldn’t a consistent libertarian position be calling for the government to get out of the marriage business altogether?

    If this were just an issue of state’s rights, I’d be fine with it. Massachusetts can have gay marriage if the population there wants it (which, depending on which poll you cite, is a somewhat dubious position to take) because I think that it’s best that the fundamental structures of a society are best managed on the local level, which is where I think that abortion or euthanasia would best be handled as well. It’s the same reason I wouldn’t care if Utah legalized polygamy or California gay marriage through the same means by which we decide now whether or not we have any number of other contentious issues settled, such as prostitution is in Nevada.

    Ultimately, my main problem with the way that the debate has been framed is that I don’t get a voice in it. If gay marriage is legalized in Massachusetts and they come to my state, they’ll challenge the DOMA in court and likely win under the FF&C clause of the US Constitution. Gay marriage is now law in my state and I never got a say in it one way or another. Probably just as well, in the eyes of those pushing for such things, because I’m just too stupid and bigoted (along with the other 60% or so of the American public) to make the right decisions in this case. And here I thought one of the whole points of having a democracy had to do with the fact that the public had some say in what is, well, public policy. I mean, if the judiciary is now in a position to make law and the executive branch to interpret it, what need is there for a legislature anymore?

    I also tend to agree with Oscar that this whole idea that there’s a tidal wave of support for gay marriage among the youth of this generation (of which I, at the humble age of 20, am unfortunately a part of) is somewhat polyannish at best on the part of the movement’s proponents. I doubt that this issue is going to go away anymore than the current abortion debate is and would cite the situation in Scandinavia as an example, where cultural conservativism, to include any belief in moral absolutes, is more or less extinct. Once one considers the shift in demographics over the next 20-50 years as more and more Hispanics move into the US and Arabs into Europe (in case anyone believes that the current “enlightened” climate in that part of the world is there to stay for all time) and I think that the polyannish nature of those who think that an FMA (which I have extremely mixed feelings about) if passed would necessarily be overturned in the same manner that Prohibition was.

    Also, as long as we’re talking social justice, it behooves me to point out that your CA supreme court just ruled that a religious institution now has to provide what is in its view immoral in order to comply with non-discrimination statutes on the topic. I am well aware that there were other reasons for the decision, but I wouldn’t act as though the very concept of such a thing occurring here is truly all that of a loopy one to begin with.

  24. Dan –

    To clarify, the CA Supes decided that religious organizations that hire non-religious folks, and serve non-religious folks, and take government funds for programs like low-income housing need to meet state law and provide contraception if they are going to provide drug benefits for their employees.

    This is nowhere near forcing priests to start dancing at Chippendale’s.

    The religious orders have the option to a) hire only coreligionists; b) stop offering services to nonworshipers; c) stop taking federal funds.

    By happenstance, this is a set of issues I have some direct knowledge in, since I do a ton of volunteer work for a religious-based organization and have been wading through the question of what’s ‘church-based’ and ‘non-church-based’ in the last three weeks. Issues close to the practice of a religion are one thing; but if I open a Zoroastorian realty office, and refuse to serve nonmembers of my church, am I practicising my religion or discriminating?

    For the record, I’m also uncomfy with the notion that the whole issue can be settled with the stroke of a judge’s pen. I think it unlikely that it will, but rather that we’re going to see – like the Civil Rights era – a combination of litigation and legislation that will drive us toward some kind of resolution.

    A.L.

  25. I appreciate your clarification on the topic, as the news stories that I had seen on it didn’t mention the federal funding part in the news stories that I had seen. That makes it a different issue altogether, though one that I am still rather uneasy about because I don’t think that the government should force people to act against their beliefs, which is pretty much the same reason why I oppose the French headscarf ban.

  26. Happened to be chatting with one of our lawyers about it, and got what seemed like a pretty good overview.

    I definitely ‘get’ the sensitivity of the Church on the issue; but there’s another side – as an example, many of the hospitals in CA have been bought by Catholic Healthcare – at which point they stop providing abortions and family-planning services.

    On one hand, it’s great that the Catholics see this as a part of their ministry; on the other at some point they distort the availalibility of these services which have been deemed legal…kind of like if the Church bought Adelphia and Clear Channel and then decided that all programming would meet LoD standards…

    A.L.

  27. I’m pretty certain that you can still get abortions in CA, ditto with contraceptives and the like. If it was just a simple matter of buying up hospitals, I’m pretty sure that we pro-lifers would have done it a long, long time ago. If people don’t like the services that these hospitals are providing, they of course don’t have to use them.

    Also, I don’t think that one’s ability to access these things say very much as far as their legality goes. The fact that I can’t find a hooker in Vegas because somebody’s hired it out all the ones on my block for the next week doesn’t affect the legality of prostitution in Vegas.

  28. Not sure I buy that argument – it’s certainly the case that in some rural areas served by one hospital or clinic, these services are v. hard to get; and I do think it qualifies as a market failure – but that’s a long post topic I’ll stick in the queue…

    A.L.

  29. If that’s the case, then I’m quite confused.

    If there is no federal money involved, then how can the state government order a religious institution to behave in a particular manner? Doesn’t the church/state division come into play there?

  30. Apparently there are two arguments that combined to drive the decision: 1) State law mandates that employers who provide prescription drug benefits as a part of health packages also provide coverage for birth control. 2) the justices found that the outside activites – hospitals, schools, charities – didn’t solely employ Catholics (they couldn’t and still get Federal funds), and weren’t primarily about inculcating religious values (i.e. not a seminary or church) and therefore were subject to the CA law.

    A.L.

  31. So question then:

    If the state is modified to the point that employers must provide abortion coverage for all of their workers, would the hospital then be ordered to provide their employees with abortions?

  32. Well, I’d find the procedure kinda painful…*grin*…but you raise a serious point. What’s the boundary between a secular relationship and a religious one? Where does conflict between society’s legitimate interest in nondiscrimination and your legitimate interest in following your beliefs get resolved?

    To be honest, I don’t really know…

    A.L.

  33. Neither do I, that’s why I’m asking.

    As a Catholic though, I don’t see how in good conscience I could support such a thing were it enacted, especially since I’ve always thought that as a general rule the whole church/state thing is supposed to go both ways – church is supposed to stay out of government and government stays out of the church.

    So I hope you’ll understand when I say that I think that is a more or less legitimate concern here.

  34. A.L. & Dan,

    We had a similar case in my court involving schismatic Catholics and one of the cemetaries operated in Stockton, California, by the Roman Catholic Archdiocese of San Joaquin County.

    The Archdiocese had for years let non-Catholics be buried in those cemetaries. The practice seems to have started for non-Catholic relatives of parishoners and grown from there to permitting non-Catholic burial services for people with no connection whatever to the faith or any church in the archdiocese – Protestants, Jews and I think one Sikh.

    Only they drew the line at a schismatic Catholic service. It appears that the deceased was the parent of a schismatic Catholic priest, both of whom had been raised, baptized, etc., in one of the archdiocese’s churches. Only the son had converted to schismatic Catholicism, and been ordained in it. His father had died before then and been buried in the cemetary of the church involved. The son then converted his mother parent to his schismatic faith and, when she died, obtained permission to bury her next to her late husband, but was denied permission to hold a schismatic Catholic burial service.

    So he sought injunctive relief for federal civil rights violation. The archdiocese demurrered (California equivalent of a federal dismissal motion) for failure to state a cause of action, citing religious immunity, etc. Our judge said at the hearing that they’d be surprised how liberally he could construe a complaint against such attack (which the law required him to do).

    “People of all faiths come from all over the world to be buried in the San Joaquin Archdiocese – Buddhists, Moslems, Wiccans, etc. The archdiocese lets them perform whatever services they want, even Voo-Doo ones for people who aren’t quite dead yet! But not schismatic Catholics.”

    He overruled the demurrer on the grounds that, once the defendant permitted any non-Catholic burial services, it could not discriminate as to which it would permit once it granted permission to use its cemetary. I.e., the archdiocese was a little bit pregnant. I suspect the archdiocese got the hint as the case never came up again on the law & motion or trial calendars.

  35. But there really are a honking lot of Christian bigots on the issue, of whom the smart ones play games with statistics to support their biases. I am familiar with such games, starting with the Nuclear Winter hoax

    Tom, you really have to be kidding to bring in nuclear winter in relation to gay marriage. in the first place, who gives a damn what Christian bigots think. Isn’t that a sort of meddling preference? The point is that it’s entirely reasonable to suppose that gay marriage could have some rather serious unforseen consequences, as suggest by the following trends it Scandinavia, from the S.F. Chronicle

    Many Scandinavian parents were having children without getting married, although parents still tended to marry before the birth of the second child. Cohabiting parents break up at two to three times the rate of married parents. So as Scandinavian parents began to cohabit, family dissolution increased — especially after the birth of the first child, which was often treated as a test of the cohabiting relationship. As the link between marriage and parenthood weakened, there seemed little reason to withhold marriage from same-sex couples.

    Yet once enacted, de facto same-sex marriage tended to lock in and reinforce the separation of marriage from parenthood. Today, in areas of Norway where same-sex marriage is most accepted, 80 percent of firstborn children and nearly 60 percent of subsequent children are born out of wedlock. In conservative and religious parts of Norway, where out-of-wedlock birthrates were still relatively low in the early ’90s, births outside of marriage have also risen significantly.

    Sure these aren’t conclusive, and I sure don’t claim they are. If there are questions about causation they can be sorted out in a panel study. The point is that it’s just monumentally stupid to proceed without caution out of some misguided concept of largesse.

    A.L.:

    Scott-
    ‘Actually I have a very close gay friend who is in an extremely committed polygamous relationship with two other men, and hasn’t the slightest interest in “gay marriage.”‘ And I know seven straight people who have been living together on a commune for twenty years, fuck each other, and own everything in a corporation. so what? I know a woman lawyer who goes to swinger’s conventions and has no interest in marrying, either. Your point…??

    Perhaps I shouldn’t have responded, because it’s really not germane, but Yehudit had nothing to offer beyond the speculation that I don’t know any gays in committed relationships, so I felt it incumbent to point out that I have a few rather libertarian friends in that category. Basically it’s sort of a “chickenhawk argument,” isn’t it?

    And you go on further to suggest:
    ‘…but they were all calibrated to the basic requirement of producing “new start” members of that who held it’s values in high esteem and had the other basic social skill set necessary to maintain the culture. Other than for a small percentage of gays who happen to have children, it simply doesn’t apply.’ Scott, I think you’re setting up your axioms to get the result you want. Marriage is about more than reproduction, and it’s value to society – of stabilizing social relationships and getting people to make long-term commitments – goes far beyond child-rearing.
    More later.

    Note, I didn’t say it’s about “reproduction.” It’s quality rather than quantity, and I’m a sociologist not biologist. People have biological urges as well as social urges, and marriage is a social institution that’s designed to mediate those. It has evolved for thousands of years for precisely this purpose. To dismiss that evolution as though I’m reaching for some contrived model to support my prearranged thesis is, well… a little insulting. I’m doing nothing of the sort. What I’m asking is: “Why aren’t you concerned about the same thing?” Given that you appear to be concerned about the fate of civilization in it’s confrontation with terrorism and anti-liberalism I just can’t understand why you’re willing to give this a pass.
    I don’t have to prejudge the results, to demand a lack of bias do I?

    Anyway, I’ll cut you some slack on this since you posted at 2:44 AM. Get some damn sleep!

    Just for the record, I’d be extremely happy if some of my gay friends in long term relationships were able to marry. But when I look around this civilization I see some real wreckage that sobers me right up.

  36. A.L.:

    I know four married couples who have no kids, and never will. Are their marriages somehow ‘less’ than one of my failed ones? TG and I won’t have any more kids, (although we are/will be raising mine) does that make our marriage a sham?

    Just for the sake of clarity, it makes that marriage of nominal concern to the culture. This has nothing to do with how you value it. As an enterprise, if your marriage (or mine) contributed to the contributions we were to make to the civilization through our work, then there is clearly a benefit. But even with that extraordinary “plus” it it actually had a negative impact on the central theme of marriage, the rearing of quality new starts, then it probably ought to be rejected. We make the assumption that non-reproductive marriages among heteros have, at worst, nominal impact on society. In fact the law treats your marriage as potentially reproductive, even if you and your wife were 80 years old. (I have this on the authority of a lawyer friend.) And there’s no coherent reason why we shouldn’t regard your marriage (or mine) as anything less than neutral, and probably a net benefit, to the culture, even absent children.

    But we have no similar “case history” with regard to gay marriage. And that’s just a simple, unvarnished, fact.

  37. And I view this much more as a paradigm issue. People on the wrong side of a paradigm shift can’t be convinced – you can only wait for them to die. That this subject involves something like a paradigm shift is evidenced by the amazing generation gap shown in public opinion polls.

    I give up, Tom. What’s the paradigm? What’s the Force Majeure that’ll sort thing out for us no matter what particularistic mistakes we happen to make?

    “Do your own thing?” “Be here now?” What?

  38. Scott,

    It depends on whether you want a real discussion. You play straw man games by taking one portion of my comments out of context and then criticizing it.

    I mentioned Sagan as an example for several different reasons – that experts with political and/or emotional biases play Piltdown Man games with data even when their careers are on the line, that I can nail them when they do, and that I suspect such games are being played concerning gay marriage.

    I also cited Stanley Kurtz’ _Weekly Standard_ article as the way it should be done, and a _San Francisco Chronicle_ excerpt from that article is the one you cite. Your quotation from it is telling:

    “.. de facto same-sex marriage …”

    De facto is not de jure, which is what the _Economist_ article I mentioned said. Even assuming Kurtz’s analysis is correct, and I don’t, it applies only to civil unions where the _Economist_ stated:

    “The importance of marriage for society’s general health and stability also explains why the commonly mooted alternative to gay marriage – a so-called civil union – is not enough …

    Yet that would be both wrong in principle and damaging for society. Marriage, as it is commonly viewed in society, is more than just a legal contract. Moreover, to establish something short of real marriage for some adults would tend to undermine the notion for all. Why shouldn’t everyone, in time, downgrade to civil unions? Now that really would threaten a fundamental institution of civilization.”

    I note that you tried to refute my point that most gays who make civil union contracts prefer marriage, by contending that most gays don’t make either. That is not material to the discussion, which is gay marriage.

    You never did ask my personal opinion on the subject. No one has ever asked – they just assume what I feel because I am so hostile to a national prohibition of gay marriage. Here’s my real opinion – let each state decide through their normal political process.

    Sure that will make things messy. I got news for you – it’s already messy, and there have been piles of complicated cases on the subject for over 150 years. One of the most difficult subjects in law school is the “conflict of laws” portion of the required course in civil procedure. Trust me – the judicial system will cope. I’m part of the judicial system.

    Our federal system lets states experiment with different laws to see which work and which don’t, and avoids magnifying errors by over-centralization. Let the issue be decided by the political processes of each state.

    California voters threw out three state supreme court justices in 1986 when those three tried to abolish the death penalty by judicial fiat. Massachusetts voters can do the same to their supreme court if they don’t like its ruling on gay marriage. If Massachusetts doesn’t have judicial retention elections, tough for them.

    California voters also enacted a law by initiative banning gay marriage. I doubt our current supreme court justices will risk a repeat of 1986 by overturning that initiative.

    The Paradigm – opposition to gay marriage is ridiculous. Young adults feel that way. Old ones don’t. The older a given group is, the more of them don’t. Opposition to gay marriage will die as older people die. The opponents of gay marriage have lost young adults.

    This generational difference is THE dominant factor in the whole debate. IMO gay marriage is coming, like it or not, and whether it is a good thing or a bad thing. It will happen. It’s just a question of time.

    We might exacerbate whatever ill effects there are from this in the meantime, by making civil unions available to everyone.

  39. I just saw the following “Email of the Day” on Andrew Sullivan’s blog. It was posted after my post above, and says the same thing about paradigm shift and generation gap.

    “EMAIL OF THE DAY: From the younger generation:
    “So I’m doing my usual morning-shower think-time routine, and what’s occurred to me a thousand times before rises again out of the precaffeinated fog: the gay-marriage issue, the host of gay issues, will register as a blip on the historical radar in thirty years, maybe less. Then I think, I should bother Andrew Sullivan with this. Not that you haven’t considered it before — obviously you have, as it was right there on your blog this morning. But people my age (I’m way under forty), especially people younger than I (not so under thirty) are learning to cope with, and learn from, difference in a way our parents never did. It’s a simple fact of life in a relatively diverse, democratic culture and it was born out by my own college experience. Raised Catholic. Went to Catholic grade school. All-boys Catholic high school. Never knew — to my naïve little mind — a gay person. Arrived at college (Catholic, no less), and suddenly there they were. Out. And, soon I realized, people. By the end of four years, more students came out. Homosexuality became an openly discussed issue on the campus. Old Jesuits wrote cranky, natural-law-ridden letters to the school paper (I sometimes rebutted them). A gay student group formed, and made noise about a lack of funding and space. The administration quivered and stayed put. And suddenly it seemed, well, like a mini-movement. Nothing on the order of what many early-middle-aged gay people experienced in their own situations, but for these kids, a lot of them Catholic, it was a seismic shift of self-understanding. And their friends, people like me, were taken along for the ride. We heteros learned with them, and from them. This isn’t relativism. It’s sociology.”

    SULLIVAN: I couldn’t agree more, and was talking about this with Hitch yesterday in what turned into a five-hour lunch. When you visit college campuses as I do all the time, you realize that the gay issue is basically over for the younger generation. They take the presence of openly gay people for granted; it seems obvious that gays should have the right to marry. That’s another reason why this constitutional amendment is so toxic an idea. Within a few years, it will seem absurd that we even thought about it.

    – 12:20:34 AM

  40. Tom:

    The differences between an analysis of “nuclear winter,” which is not only a theoretical predictive model, but one based on physics, and an after-the fact empirical analysis of a social science phenomenon such as the indirect effect of gay marriage, or marriage-like arrangements is SO VAST that it suggested to me you simply didn’t understand the problem. That is hardly a “straw man,” especially since understanding the nature of the method is pretty central to the debate.

    The Paradigm – opposition to gay marriage is ridiculous. Young adults feel that way. Old ones don’t. The older a given group is, the more of them don’t. Opposition to gay marriage will die as older people die. The opponents of gay marriage have lost young adults.

    This generational difference is THE dominant factor in the whole debate. IMO gay marriage is coming, like it or not, and whether it is a good thing or a bad thing. It will happen. It’s just a question of time.

    I can remember saying something like that as a kid walking out of a Steppenwolf concert. As soon as those olf fogies die off. Most of us, in case you disremember, were once anarchists. And I’d also point out that the attitudes of people toward SSM is just that: an attitude. Attitudes change frequently, and are relatively voltile. What’s important are the unterlying values, and most of the research I’ve done on this indicates that the values of Americans hasn’t really changed very much in the last 50 to 75 years. Besides, a greater tolerance for gays is hardly synonymous with expansion of the marriage franchise, especially from a rather young (and relatively conservative) cohort. Perhaps when they realize, after a bit of experience, that (as *Maggie Gallagher* observes) “marriage is more than a vow of love” they may change their minds.

    The Weekly Standard and S.F. Chronicle articles raise some crucial issues about the potentially disastrous effects of separating child-rearing from marriage. If the US had Scandinavia’s pattern of single parenthood it’s doubtful that we’d survive as a society. They manage it because they’re ethnically homegeneous, but even at that it’s not w/o cost.

    I guess I haven’t a problem with the federalism solution, if the people promoting it would drop the “civil rights” argument. And again, I think all these “strawman” agruments are really a manifestation of the fact that you have no comprehensive argument, other than a sort of vague indulgence of letting folks do what they want. What is the over-riding value that SSM is supposed to be aligned with, that will ensure most of the unintended consequences are benign?

    Finally, remember Aristophanes? Attitudes about morality and sex change, but not always in the same direction.

  41. Scott,

    You sail right by my criticism of Kurtz’s reasoning as being identical to that of the proponents of the “global warming is principally man-made” concept. And you still haven’t noticed that the Chronicle article by Kurtz was a significantly shortened version of his prior full version in the Weekly Standard.

    Kurtz takes trends already in existence and _assumes_ those are mostly due to his bete noir. He plays games with statistics, which Sagan did, but Kurtz uses real data rather than relying on a little known Lawrence Livermore study based on totally unreal assumptions (what if all the spent nuclear fuel rods and radioactive waste in the whole wide world were irradiated and vaporized just like the U-238 casings of “hydrogen” bombs aka fission-fusion-fission devices). I recognize the games.

    My day job is California civil procedure. It’s what I do all day, every day. And one of the major legal concepts I deal with is something called “burden-shifting”, i.e., which party has to prove something first. Generally the party bringing a given motion must first prove why they should win. Sometimes the non-moving party must first prove why they should win, such as in California Code of Civil Procedure section 405.32 (motion to expunge lis pendens).

    Bear in mind what I did to Alec on Drezner’s blog. He destroyed himself by contending that I had to disprove a negative.

    I don’t have to prove that gay marriage won’t threaten the institution concerning straights. I concede that it might pose a cummulative impact and so want the states to experiment.

    But I also contend, and here there is considerable evidence, that those who don’t want there to be such experiments at all are generally motivated by religious prejudice and/or unresolved personal issues.

    And I have yet to see any thing at all even tending to show that gay marriage threatens straight marriage. Kurtz at best shows that heterosexual males have a tendency to avoid marriage if there is an alternative.

    I got news for you about that too. They already do. They have since the Pill. The trend started then.

    No fault divorce made the trend worse. So did LBJ’s War On Poverty – try isolating black urban areas from the statistics and see what that does to the decline in marriage trend.

    Lots of factors are at work now in this trend, for good and bad. Lots more factors will become involved in the future. Lots of factors in the past have since ceased to exist. Lots of factors presently in existence will cease too.

    Freedom does not need justification.

  42. Tom —

    To the extent that “burden of proof” has any relevance at all here, the party advocating change has the burden of proof. Marriage has been between a man and a woman for 5,000 years; it has been the bedrock of social organization for every society. If you want to change that, you need to convince me why it’s a good idea (or at least why it won’t cause any harm).

  43. Freedom does not need justification.

    “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

  44. Tom —

    Nice dodge. (1) Prove it’s about freedom; and (2) Once you’ve proven that, show how this advances it; (3) Once you’ve done that demonstrate how this fits in with our system of “ordered liberty” and does not disproportionately harm society; (4) Demonstrate that this issue is appropriately addressed by the Constitution; and (5) Once you’ve done that rely on an Amendment that is actually used by the Courts.

  45. Tom —

    As an aside, the text of the Tenth Amendment suggests that States are perfectly within their rights to ban gay marriage.

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