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Chemerinsky: Decoding the gay-marriage oral arguments

May 2, 2013, 01:30 pm CDT

Comments

Dismiss both as cert improvidently granted.

By JimB on 2013 05 02, 1:33 pm CDT

I wonder how Prop 8 supporters would "decode" the oral argument. ABA Journal--want to give us a companion piece on that?

By Wine Country Dude on 2013 05 02, 3:55 pm CDT

As I have been saying for several months: The Court will hold that the Prop. 8 proponents, the BLAG, and the United States do not have Art. III standing. In the Prop. 8 case, the district court should have simply entered a default judgment for the named plaintiffs challenging that initiative. In the DOMA case, the district court should have simply entered a default judgment in favor of Edith Windsor.

Prof. Chemerinsky, and his colleagues in academia, will spend their summer reading about standing, not about same-sex marriage, equal protection and due process.

By pvineman1 on 2013 05 02, 4:55 pm CDT

As an attorney I know how to protect rights of gay individuals, but rather than take advantage of legal services, many members of the LGBT community want to redefine the term "marriage." Marriage is not defined in the Constitution and the people of the State of California voted on this issue and it is a California statute. So the California Supreme Court should have the last say so on this matter.
As for the DOMA act, the Department of Justice refused to stand for the legislation. They just demurred and refused to enforce the law. This is WRONG! We citizens are obligated to obey the laws. Why shouldn't the DOJ be required to do the same.
All of these distractions from our real problems -- economy, terrorists, jobs. Especially when one member of the LGBT community, Masha Gessen, in 2012 stated that the real purpose is to destroy marriage. " The push for gay marriage has less to do with the right to marry – it is about diminishing and eventually destroying the institution of marriage and redefining the “traditional family.” See the video @ http://www.theblaze.com/stories/2013/04/29/lesbian-activists-surprisingly-candid-speech-gay-marriage-fight-is-a-lie-to-destroy-marriage/

By Pacific on 2013 05 02, 7:15 pm CDT

The issue of standing is of far less concern than the fundamental governance issue: is the executive branch entitled to refuse to enforce and defend, and therefore nullify, duly enacted constitutional amendments (Prop 8) and statutes (DOMA)?

If so, then who has standing to defend the duly expressed will of the people and of Congress? Nobody? I think the actions of Prop 8 supporters and the House of Representatives in claiming standing are entirely appropriate, given the executive's complete abdication.

By Wine Country Dude on 2013 05 02, 7:21 pm CDT

I am aware, of course, that advocates and, most likely, the ABA and its online Journal, believe that principled opposition to gay marriage is simply not possible, that it is inherently illegitimate and deserves no legal support whatsoever. They are comfortable with the notion that the executive can effectively nullify legislative and constitutional enactments as long as that practice comports with their views and those of all "right-thinking" individuals.

But for others, consider the following hypothetical: Congress enacts strict gun control legislation and President Obama signs it. In 2016, Governor Perry of Texas is elected President, and directs the DOJ not to defend it against challenge from right wing groups. Does no one have standing to defend it?

By Wine Country Dude on 2013 05 02, 7:46 pm CDT

@4: "The push for gay marriage has less to do with the right to marry – it is about diminishing and eventually destroying the institution of marriage and redefining the “traditional family.”"

Ah, the old canard of fear-mongering about the "other", here, gay people, wanting to destroy a legal institution that they are currently excluded from by nature of their sexual orientation. It's a game that has been played repeatedly over the past few centuries in this country. Fortunately, whether the Supreme Court does it this summer, or it comes in another decade, same-sex marriage is coming because LGBT Americans are entitled to equal treatment under the law.

Smooth plug for your Blaze link, btw.

By EsqinAustin on 2013 05 02, 7:56 pm CDT

When do we get the right to marry more than one spouse?

By tim17 on 2013 05 02, 7:59 pm CDT

@8: When you can show that by nature of wanting to marry more than one spouse, a person is excluded from the institution entirely.

Do I really need to do an Equal Protection 101 refresher course for you, "Tim"?

By EsqinAustin on 2013 05 02, 8:00 pm CDT

@8: Of course, that is presuming you are dragging out that tired, simple-minded "derp derp polygamy" complaint, and not referencing divorce. Most Americans already marry more than one person over their lifetime. :)

By EsqinAustin on 2013 05 02, 8:01 pm CDT

This thread is an example of how far from logic and law the left has progressed. Frame a point in a seemingly reasonable manner, and the whole debate seems ridiculous. Of course, you have to be a Kool-Aid drinking shallow "thinker" to come up with many of the pro-SSM "arguments"
- a few are here on this thread and are so patently absurd.


In any event, it is very clear that anyone who does not think that SSM is the most glorious thing ever must be a "hater", or someone that has reservations about killing babies must want to subjugate women.

By Marc on 2013 05 02, 10:18 pm CDT

I'm sorry Marc, are you pontificating about gays or some other group you feel isn't entitled to equal rights? Considering your arguments could have been lifted straight from the southerners strategy book of 1960, it really is quite difficult to tell whom you are rallying against.

By EsqinAustin on 2013 05 02, 10:22 pm CDT

EsqinAustin @7: Forget the equal treatment rationale. The government will ultimately approve gay marriage because, like the rest of the population, the gay population is aging. Older people tend to get sick and die in excruciatingly expensive fashion. It is more cost effective for the govt. to have a spouse-- gay or straight--care for their partner than to have them dependent on the Medicare/Medicaid system. Sad but true--money will eventually win out over faith. Regardless of whose "base" they may be.

By BMF on 2013 05 03, 12:24 am CDT

I've lived long enough that it's deja vu all over again hearing the words from the mouths of those against gay marriage sounding exactly like the words from the mouths of those who opposed inter-racial marriage.

By Moderate Centrist Independent on 2013 05 03, 2:28 am CDT

These comments--the inevitable references to bigotry and the South in the 60s--sadly reflect the absence of real debate. Gay marriage is inevitable, not because it is an inherent good, but because it is completely consistent with our judicial and political culture for the last 50 years. That is, a culture that values individual legal rights over any competing priority.

And, in truth, heterosexuals over the same 50 years have enormously trivialized marriage. If Britney Spears can debase the marriage commitment in Las Vegas, gays argue, compellingly, that they cannot do worse.

But the real issue is this: we are embarking on an experiment that no other society in the history of mankind has ever performed, and we are embarking on it without serious debate. Questions about the necessary social structure which best perpetuates the next generation--a heterosexual family composed of a biological father and biological mother--are blithely discarded in favor of comparisons to Selma, Alabama.

We will not know the answers to these questions immediately or anecdotally. That little Johnny in a given case may be raised perfectly well by two non-biological lesbian parents is beyond question. We do not need another photo-op of two very wholesome-looking, late middle-aged Boomer men who have a twenty year monogamous partnership.

We will know the answers only over time, just as we are seeing now the broad social problems resulting from widespread single motherhood. And it will be very hard to reverse them at that point.

By Wine Country Dude on 2013 05 03, 3:49 am CDT

Debate is moot.

By Moderate Centrist Independent on 2013 05 03, 7:09 am CDT

@ 15 Wine Country Dude - It is also possible that we are creating the problems with single motherhood, not just observing them. We create a society where single mothers are often impoverished, ridiculed, and denied social support from the community, and we then say that the reason single mothers and their children have difficulty is because this is a household with a single mother, not because it is a household that is impoverished, not because it is a household that is ridiculed, not because it is a household that is denied social support, even though we know other situations where those same three factors cause problems. In logic, this fallacy is known as "post hoc, ergo propter hoc," and any elementary course in logic addresses this as one of the most elementary fallacies in logic. In English, the fallacy in logic is in assuming that when two things occur one after the other, the first thing is caused by the second. For example, pulling your uncle's finger did not really cause him to fart. It just gave him an excuse to annoy his sister. Similarly, in a less sexist society, or even one with better child care, or one where it was common for two or three single parents to share some household management and parenting responsibilities, single mothers and fathers might raise happy well adjusted children. We don't know.

By Kit on 2013 05 03, 8:43 am CDT

The executive branch refuses to enforce laws all the time. Not because the executive branch is evil. Because we have a ridiculous number of laws and limited resources. As long as it isn't our pet law, we by and large don't mind that not all laws are always enforced.

If a law has been found to be unenforceable, it doesn't usually get enforced. If a law is obsolete, it doesn't usually get enforced. If a law is redundant, it doesn't usually get enforced. If a law is believed to be unconstitutional, it may not get enforced if no one is pushing enforcement too hard.

The old story about the legislature of math haters who legislated that the ratio of the diameter of the circle to the circumference of the circle should be 3 rather than 3.14159... is probably just a story. But it will serve as an example of the type of law that the executive branch should not waste taxpayer money enforcing. Every high school geometry student would love to see that law enforced, but those that go on to become engineers in stead of lawyers know that trying to enforce it would be a waste of money. Circles are not going to be any shorter around, no matter how many laws are passed saying that they should be. If they were any shorter around, they would no longer be circles. Okay if that example makes your head hurt, don't worry about it. Lots of lawyers like math even less than whatever else they don't like.

Every chief executive sets priorities for legislative enforcement. As lawyers we are almost all aware of this. So stop acting so horrified that this is happening with respect to a particular law. You may want to urge that the enforcement choices are different. It is your right to encourage different priorities. Sometimes government listens, sometimes government doesn't listen. Then you vote accordingly.

By Kit on 2013 05 03, 9:10 am CDT

I agree with Wine Country Dude @2. Chermerinsky is on the political left. A fair and balanced approach for the ABA would be to present the opposing conservative point of view.

I personally think that default judgments in this area are inappropriate. A legislature has enacted a statute. The executive does not constitutionally get to void laws by simply abdicating enforcement. Important issues in the current day are involved. A "default" here is a default of responsibility.

I think many on the political Left are quite comfortable with a technical ground because I don't think they have an answer a reasoned conservative defense of DOMA and Proposition 8. Society has a right to protect traditional marriage as the best and preferred means of having and raising children and as providing a certain social stability. Gay couples cannot procreate; it is a fact of nature. A family with a male father and female mother provides the best environment for raising children. People with real lives know these facts.

Ask yourself: what would the Founding Fathers think of the argument "gay marriage"? They would think you to be a perverse libertine that would wreck the social order and laugh at the arguments made by Chemerinsky. Ask yourself: would the Civil War generation thought differently from the Founding Fathers on this matter? The answer is no.

By Phil Byler on 2013 05 03, 10:47 am CDT

@Phil: So we need another civil war to advance the rights of a minority in this country? Shame if we do, but if we really care what the civil war generation thought on this topic, so be it.

By EsqinAustin on 2013 05 03, 12:05 pm CDT

@ 15 - "But the real issue is this: we are embarking on an experiment that no other society in the history of mankind has ever performed, and we are embarking on it without serious debate."

You know that is patently untrue, right? A number of states have had legal recognition of gay marriage for years, and it is legal in a number of countries worldwide (Holland, Argentina, Canada, New Zealand, others). No fall apart of society yet. And the debate has been going on here for years as well, pretty intensely at that. In fact, a number of cases on the issue have come before our Supreme Court. I would suggest that that is a pretty serious debate.

Why is it the viewpoint of Americans that if something has not happened here, it never occurred???

By NoleLaw on 2013 05 03, 12:25 pm CDT

The institution of marriage doe not discriminate against anyone on the basis of sexual orientation. Gays can in fact marry as long as they marry someone of the opposite sex, just like the rest of us. By definition, that's what they need to do to get married. There is not enough support for their drive to change the definition of marriage because many still frown upon gay relationships and therefore try to justify their opposition to gay marriage by seeking other reasons to oppose it. That's what political correctness forces us to do; it obscures the truth and prevents open and honest debate.

By Saffer on 2013 05 03, 12:26 pm CDT

You are assuming erroneously, EsqinAustin @20, that what you call "gay marriage" is a matter of civil rights. It is not. Gay sex is behavior,and legislatures are democratically elected to pass laws regulating behavior. In contrast, what is called race is a skin pigmentation, and while such skin pigmentation cannot be changed, it is an irrational basis for distinction; our DNA shows us to be all out of Africa.

We care about what the Founding Fathers and Civil War generation thought because they are responsible for the constitutional texts which are being interprested and applied in the DOMA and Proposition 8 cases. If you believe yourself free to pour substantive content into general constitutional langauge ("due process of law" and "equal protection"), you are effectively making unelected judges sovereign. The U.S. Constitution's Preamble should read "We, the Judges. . ." and not "We, the People...."

By Phil Byler on 2013 05 03, 12:33 pm CDT

@ 19 - "The executive does not constitutionally get to void laws by simply abdicating enforcement." Actually, the executive is enforcing DOMA. The executive, however, is not obliged to defend the law.

"Ask yourself: what would the Founding Fathers think of the argument “gay marriage”?" What did they think about slavery? Interracial marriage? Universal suffrage? Free speech (think Alien and Sedition Acts)? For the same reasons that we do not judge them too harshly on the views they held on these matters, as the founding fathers were after all products of their times, we would be foolish to base our contemporary understanding of civil liberties based on the views they held.

By NoleLaw on 2013 05 03, 12:35 pm CDT

@19: "I think many on the political Left are quite comfortable with a technical ground because I don’t think they have an answer a reasoned conservative defense of DOMA and Proposition 8."

I disagree that the left would be comfortable with a dismissal in either/both cases on a technical ground, for this reason: the Court would once again decide in favor of LGBT plaintiffs without deciding whether sexual orientation merits some form of heightened scrutiny. In both Romer and Lawrence, the Court decided the issue by saying the statute in question didn't even meet rational basis--it never said whether rational basis or intermediate scrutiny or strict scrutiny was appropriate. In these cases, were the jurisdiction/standing issues not present, that's exactly what the Court would have to decide in Windsor (I'm not sure about Hollingsworth). Resolving the cases without resolving that issue means we'll all be back here again in a few years.

As for the 'reasoned conservative defense' bit, well, I've read the three principal briefs in Windsor; I sincerely hope that the conservative defense you were talking about wasn't one BLAG presented. The best 'defense' that BLAG presented is that Congress believed DOMA would save the government money; not that it actually would, mind you, just that Congress could have believed it would. The arguments about procreation disregard current treatment of the infertile/elderly, the arguments about child-rearing ignore a decades' worth of scientific studies about same-sex families/parenting, and the arguments about society's attitudes are resolute in the face of polling data indicating the exact opposite. The money defense might satisfy rational basis, depending on how feisty Justice Kennedy is feeling, but not any higher test.

By JC on 2013 05 03, 12:37 pm CDT

Is "marriage" a religious matter or a secular one? If the issue is equal protection, isn't a civil system recognizing certain rights and obligations sufficient? If the issue is the "institution of marriage" then is the institution of marriage a religious precept and if so, the Courts have no business entertaining any ecclesiastical challenge. So is marriage a religious matter or a civil one? If it is a civil contract between two people, or maybe three or four because we all enjoy a freedom to contract, then contract rules should apply and our civil system of laws and regulations would also apply. Permit civil unions or whatever you want to call it. BTW, like it or not, the analysis offer by Professor Chemerinsky is very thoughtful and very impressive. I didn't read the arguments the same way but that doesn't mean Chemerinsky is wrong.

By Sparky's Still Trying on 2013 05 03, 12:38 pm CDT

NoleLaw@21, what you cite in other countries is relatively recent, and the results suggest that we not follow that experimentation. The concern that conservatives rightly have is that "gay mariage" will undermine traditional marriage and the benefits it brings to society. In Sweeden, traditional marriage has been seemingly completed done away with by Sweedes, and for what? In those places, the percentage of gays who marry is as low as 5%.

By Phil Byler on 2013 05 03, 12:38 pm CDT

JC @25, I don't think that a reasoned strong conservative case for traditional marriage was presented to the U.S. Supreme Court. So, I am not surprised by your comment. It has been a matter that I have raised on my side of the political aisle.

You obviously want sexual orientation to be given heightened scrutiny. I think that would be a very unfortunate conclusion. The U.S. Supreme Court has been shying away from that conclusion beause instinctively they know that the consequences would be significant enough that it would call into question the integrity of the Court.

By Phil Byler on 2013 05 03, 12:46 pm CDT

Sparky's Still trying@26, I don't find Chererinsky impressive at all. Only recently has it been a matter of debate about what "marriage" is about, and it has arisen because of the dumbing down effect of left wing political "thought." Marriage has for thousands of years been the basic social institution; it has been the way that society traditionally organized itself for the procreationand raising of children as well as providing a force for social stabilty. The importance of mariage to good social order and health was why the Judean-Christian moral tradition embraced it, but the good reason for traditional marriage exist as civil matters. Hence, in a democratic society operating under a written Constitution, that democratically elected legislatures enact laws to enshrine and protect traditional marriage is the People's business, not the Judges' province under general constitutional texts.

By Phil Byler on 2013 05 03, 12:54 pm CDT

Congress' plenary power to tax without judicial review cannot be interpreted as conferring a broad right to define marriage. Chemerinsky asserts a general statement regarding treatment of the 10th Amendment since 1936. What of the courts history of denying cert based on the court's conclusion it had no authority to hear the case? Or the long history acknowledging that domestic relations fall within the jurisdiction of the states?
I would have liked some mention of how this state referendum appeals case falls within the decision of Pacific States Telephone & Telegraph Co. v. State of Oregon, 223 U.S. 118.

By Legallyblonde on 2013 05 03, 1:12 pm CDT

@ 28 and 29 - "I don’t think that a reasoned strong conservative case for traditional marriage was presented to the U.S. Supreme Court." If you come up with a well reasoned justification for prohibiting gay marriage, let us know. If it meets our constitutional requirements of substantive due process and equal protection, you might be the first.

You do yourself a disservice when your only dismiss the support for same sex marriage rights as a result of "dumbing down" and left wing political thought. Substantive due process and equal protection are not liberal or conservative matters. And libertarians too favor extending the same marital rights without regard to sexual orientation.

"The importance of mariage to good social order and health was why the Judean-Christian moral tradition embraced it."

If anything, that is an argument that marriage should also be available to same-sex couples, you know, to promote stable, supporting, long term relationships.

By NoleLaw on 2013 05 03, 1:13 pm CDT

First, there already is equality (i.e., before the law) in marriage. I.e., marriage is the union of one man and one woman. And, anyone can participate in this institution if he wants. However, if someone doesn't want to join with one person of the opposite sex, then he doesn't want marriage; he wants something else. "Marriage equality" is a carefully crafted euphemism meant to mislead high-affect/low-information poseurs.
Second, there is no such thing as a homosexual "marriage." There is only marriage. Marriage is the union of a man and woman in holy matrimony. What is actually being debated is a change in the legal definition of marriage. Even if the legal definition was changed (as it has been in a few states), marriage is still the union of a man and woman in holy matrimony. But, the law is saying otherwise. It is like the legal fiction of corporations being "persons" or "paying taxes." Corporations are not people nor do they pay taxes. However, they legally are and do. Similarly, two people of the same sex celebrating their sexual relationship is not, nor can be, a marriage. But, the law can call it that, thereby creating another legal fiction. A government could make a law that horses with stripes painted on them are zebras; but it does not make it so.
Finally, it would be nice if people stopped acceding to the stupid euphemisms that the Left carefully creates to deceive the general public (e.g., marriage "equality," homosexual “rights”). Marriage law already treats everyone equally (i.e., anyone can marry one person of the opposite sex, who's of age, and consents). But that's not good enough for the Homosexual Normalization Lobby; they don't want to be treated equally under the law. They want special privileges to legally redefine a fundamental institution of civil society so as to create the false impression that their sexual behavior is the equivalent of normal sexual relationships (i.e., a man and a woman).

By SLaw on 2013 05 03, 1:19 pm CDT

@23: "You are assuming erroneously, EsqinAustin @20, that what you call “gay marriage” is a matter of civil rights. It is not. Gay sex is behavior,and legislatures are democratically elected to pass laws regulating behavior. In contrast, what is called race is a skin pigmentation, and while such skin pigmentation cannot be changed, it is an irrational basis for distinction; our DNA shows us to be all out of Africa."

Actually, skin pigmentation can be changed, but with much difficulty.

Gay sex is a behavior to the same extent that heterosexual sex is a behavior. However, the underlying orientations are not. If you are comfortable living in a society where heterosexual "behavior" can also be regulated, along the lines of banning sex outside of marriage, criminalizing certain forms of heterosexual sex acts, and more, you are welcome to desire such a society. That is the implication from your "reasoning" concerning homosexuality.

However, the rest of us in society will continue moving along just fine.

By EsqinAustin on 2013 05 03, 1:26 pm CDT

In the end it comes down to whether or not homosexual unions are entitled to the same respect before the law that heterosexual unions are. If one does not believe they are, then one is going to argue against the equal recognition of homosexual unions.

Those who do so will earn the labeling history will give them. (See, e.g., those who defending anti-miscegenation laws, etc.)

By EsqinAustin on 2013 05 03, 1:26 pm CDT

Kim writes:- "It is also possible that we are creating the problems with single motherhood, not just observing them. We create a society where single mothers are often impoverished, ridiculed, and denied social support from the community, and we then say that the reason single mothers and their children have difficulty is because this is a household with a single mother, not because it is a household that is impoverished, not because it is a household that is ridiculed, not because it is a household that is denied social support, even though we know other situations where those same three factors cause problems."

Wrong, Kim. Single mothers are creating their own situation, and they get plenty of government benefits as it is. We don't create a situation by limiting how much people who make lousy decisions can mooch off people who make good decisions. You want to turn their lousy decisions into good decisions by sending the bill to the rest of us. Meanwhile, those single mothers are generally single for one core reason: their own decision to reject the sincere guys that would have stuck around to raise a child with them.

Anyway, getting back to the larger debate,

By DirkJohanson on 2013 05 03, 1:28 pm CDT

@32 - Your argument that marriage treats everyone the same because everyone can get married, as long as it is to someone of the opposite sex, is on its face internally inconsistent. The statement also discriminates on its face on the basis of sex. That's all well and good, but seems like you need to pass intermediate scrutiny to allow it (heck, how about a rational basis that is founded on more than "I don't approve"). Your argument seems to boil down to "marriage should be limited to a man and woman because that is what it should be limited to." Not very insightful.

As far as same sex marriage being legally created fiction in the states where they are recognized: well sure. All legally recognized marriages are legal fictions. I think that is the point. Same sex couples want the same access to the benefits that such a legal fiction creates.

By NoleLaw on 2013 05 03, 1:35 pm CDT

I can't wait for the SCOTUS ruling, and I expect it to strike down the bans. I also don't care if the supporters of discrimination are unhappy with it because the power of the law is more powerful, and absolute, than their ridiculous opinions. It also has legal insulation from their obsessive intrusions into our private lives.

By Delacouix on 2013 05 03, 1:53 pm CDT

Family law is decided by state courts. States can make their own laws regarding family matters.
If allowed then a father can marry his son or daughter and then will be free to pass whatever estate he wants without any estate costs.
Oh, what a CONUNDRUM, which could eviscerate many other laws.

By Pacific on 2013 05 03, 2:02 pm CDT

A number of comments accuse Chemerinsky of being a left-wing shrill; I'm curious where these critics would like all of us to go to read an allegedly "balanced" article on the subject. Even Fox News has articles expressing support for same-sex marriage, so where else in the deep end of lunacy can we find it? If you've listened to the oral arguments and read the briefs, you'll be hard pressed to find a persuasive argument that section 3 of DOMA can be upheld under intermediate scrutiny, and very unlikely to survive rationale basis. Bemoan the perceived tragic course of equal protection jurisprudence if you must, but consider removing your head from the stacks and wake up to a changing world and a real need on your part to recognize that maybe your own biases and misconceptions is fueling your outcries for "balanced" journalism.

By JohnD. on 2013 05 03, 2:09 pm CDT

I can't wait for that court opinion that finally says something falls under the 10th Amendment. And then state opinions that determine "to the people". Despite all the arguments, two people getting married does not disrupt society.

SLaw I find your one man-one woman argument as having no basis. The FACT is that 85% of the world's societies are polygamous. The US standard of monogamy is only practiced in 15% of the world. If we want to argue "Holy" as in the Bible you'll find polygamous marriages among Abraham, Jacob, Gideon, Saul, David and Solomon.

Then we have Adelphopoiesis, Ordo ad fratres faciendum and Affrèrement.

As long as it causes no harm to another our government should stop regulating behavior. If for ideology reasons it offends you stop judging. If by throwing around "holy" you are professing faith then you should be aware your purpose here is to love not judge. Determining whether someone is right or wrong or condemned is the ultimate job of someone else.

By Legallyblonde on 2013 05 03, 2:13 pm CDT

@Pacific: "Real problems" cut against same sex marriage opponents, not for them. Shouldn't these pressing matters - which I happen to believe are pressing - come behind some small religious minorities' efforts to use the force of law to advance their religious agenda on the rest of us?

Imagine how many advances in civil rights and liberties we could delay by this tactic! Imagine if we couldn't have advanced civil rights in the 60's because we were more occupied with the bigger enemy of communism!

By Handy Andy on 2013 05 03, 2:29 pm CDT

Exactly Pacific. Chemerinsky just ignores that laws regarding marriage between first cousins are not the same in all 50 states and neither is common law marriage. I've never heard of a challenge in say Texas that this violates the equal protection clause.

By Legallyblonde on 2013 05 03, 2:33 pm CDT

@NoleLaw your comment (#36) is sophistry. You wrote: "Your argument that marriage treats everyone the same because everyone can get married, as long as it is to someone of the opposite sex, is on its face internally inconsistent. The statement also discriminates on its face on the basis of sex."

It's not that "marriage treats everyone the same." Rather, the issue is that marriage has a fixed meaning. It has, and always will be, a union of one man and one woman. This meaning is derived from the fact that only one man and one woman can physically unite (or marry). Also, only men and women can mentally/emotionally marry because their inherent strengths and weaknesses complement each other.

Further, I didn't write that "marriage treats everyone the same." That would be an absurd assertion. Marriage is an institution, it can't treat anyone in any way; it simply is. What I wrote is that "there already is equality (i.e., before the law) in marriage," which is true. You're failing to make the distinction that current marriage law merely codifies what already is, i.e., marriage is the union of a man and a woman.

Finally, marriage is not a legal fiction. Marriage contains the foregoing elements, which can be satisfied (i.e., one woman and one man can physically and mentally/emotionally unite; they have biological complementarity). On the other hand, two or more people engaged in homosexual behavior can never possess those traits, which is why it would be necessary to create a legal fiction that a homosexual relationship can be a "marriage." (I.e., because in reality a homosexual relationship can never be marriage.)

By Slaw on 2013 05 03, 2:39 pm CDT

@43: " It has, and always will be, a union of one man and one woman."

Holy ignorance, someone get Slaw a history book, or access to the records of other nations where marriage isn't just "one man, one woman".

By EsqinAustin on 2013 05 03, 2:39 pm CDT

@43 - Your argument that same sex marriage should not be allowed because marriage is "and always will be, a union of one man and one woman" is circular, and therefore meaningless (and as EsqinAustin pointed out, flat out wrong as a matter of fact).

By NoleLaw on 2013 05 03, 2:47 pm CDT

@ Legallyblonde: you must have tried pretty hard to get so much wrong.

"SLaw I find your one man-one woman argument as having no basis. The FACT is that 85% of the world’s societies are polygamous. The US standard of monogamy is only practiced in 15% of the world. If we want to argue “Holy” as in the Bible you’ll find polygamous marriages among Abraham, Jacob, Gideon, Saul, David and Solomon."

Polygamy still contains the same element, i.e., one man and one woman uniting in holy matrimony. The difference is that those societies allow the man to have more than one wife. However, and again, it still doesn't change the fundamental requirement that it can only be between one woman and one man. When a polygamist marries more than one woman, the wives are not all married to each other; they're only married to the man.

"Determining whether someone is right or wrong or condemned is the ultimate job of someone else."

This assertion is non-sense. Judging behavior (i.e., making determinations as to whether the behavior is good or bad) is not condemned anywhere. The biblical proscription on "judging" states that Christians should not judge whether someone will be damned to hell for his behavior. And, that is not what is being done when the pro-marriage side defends marriage against attempts to legally redefine it by the anti-marriage bigots. Nice try sophist.

By Slaw on 2013 05 03, 2:47 pm CDT

@EsqinAustin

"a history book, or access to the records of other nations where marriage isn’t just “one man, one woman".

Marriage has always been one man and one woman. Even in polygamy, each marriage is as between one man and one woman. Nice try though.

By Slaw on 2013 05 03, 2:49 pm CDT

@46: "And, that is not what is being done when the pro-marriage side defends marriage against attempts to legally redefine it by the anti-marriage bigots."

Wow, that is the most ignorant sentence I have read in weeks. Kudos, Slaw. Also, thanks for displaying your own prejudice by defining those who want to partake in the legal institution as "anti-marriage bigots".

To classify homosexuals that way is to dehumanize and metaphorically spit upon them. It reflects a debasement of homosexuals that is unworthy of further recognition. Shame on you.

By EsqinAustin on 2013 05 03, 2:52 pm CDT

@47: "Marriage has always been one man and one woman. Even in polygamy, each marriage is as between one man and one woman. Nice try though."

So current marriage laws in the United States allow for polygamy, since they define marriage as between " one man, one woman"?

Nice try, though.

By EsqinAustin on 2013 05 03, 2:53 pm CDT

Well Slaw on behalf of my grandparents who for over 30 yrs due to prostate problems could only mentally and emotionally and not physically unite, I can tell you that humans can have satisfied "marriages" without your interpretation of necessary jig saw pieces.

Marriage is a term meaning the combining of two things. When you render a court decision you "marry" the facts and the law". When you create a song you "marry" the lyrics with the music.

It's a social institution whereby two people enter into mutual legal commitments. It may be civil (at city hall) or religious. It can occur without any ceremony at all such as common law marriage. In all cases then requiring a legal process to get out of.

What you keep referring to as an institution is some form of religious ceremony or ritual associated with the church. I think your real argument should be directed at the church not at the law as these are two separate things. For example, if we were talking about the institution you are referring to it simply states "till death do us part". The institution we are discussing does not have that proviso.

By Legallyblonde on 2013 05 03, 2:56 pm CDT

Look, OK we get it. This is just like baseless accusations of pedophilia against homosexuals. The anti-marriage camp needs to define themselves as better than someone or something, so they're playing "keep away" with some of the privileges and rights so they can assert their superior status. If they need to call homosexuality "immoral" to feel better, fine. It just shouldn't have the effect of the law behind it.

But they're not homophobic! Some of them even have gay friends!

BTW you should take a look at some of your anti-equality French counterparts. They're rioting in the streets and giving the fascist salute. This battle not about preserving the status quo. The state should not be a vehicle to support this kind of sentiment, period.

By Handy Andy on 2013 05 03, 3:09 pm CDT

I'm confused by the focus in this article on whether or not there is a constitutional right for gay marriage. Although I believe there is, it seems irrelevant to the equal protection argument, which is stronger than the due process argument. States can't take something away from one specific group of people without a good reason, and there is none. Doesn't matter if what you're taking away is a constitutional right. Am I misunderstanding the professor's argument?

By Rachel on 2013 05 03, 3:11 pm CDT

My sense is that this entire discourse on Same Sexx Marriage and Gay Rights is an obvious distraction rooted in the true demands of Gays; and that is: A. demand for culural acceptance by american society; B. Dignification of perverted sexuality by Gays all of which has no place in american jurisprudence nor a matter provided by the Constitution and should be rejected by the High Court. But because the members of the High Court are not elected by the people and are seated on political standing together with the power of money anything is possible.with the power of money.

By Scott D'Ambrose on 2013 05 03, 3:12 pm CDT

And with Scott D'Ambrose's comment in #53, we have the underlying opposition to same-sex marriage: an intense dislike of homosexuals.

Kudos to Scott for not dressing up that prejudice in colorful language like, "maintaining tradition" and "concern for the institution of marriage".

By EsqinAustin on 2013 05 03, 3:15 pm CDT

@EsqinAustin

"Wow, that is the most ignorant sentence I have read in weeks. Kudos, Slaw. Also, thanks for displaying your own prejudice by defining those who want to partake in the legal institution as “anti-marriage bigots”.

To classify homosexuals that way is to dehumanize and metaphorically spit upon them. It reflects a debasement of homosexuals that is unworthy of further recognition. Shame on you."

First, if the Homosexual Normalization types wanted to be married, then they would marry someone. But, that's not what they want. Instead, they want to change the legal definition of marriage so that they can force others to pretend that their relationships are "marriages," when in truth they are not.

Second, Leftists use the same language about Conservatives and Christians all the time. The only difference is that when I used call them "anti-marriage bigots," language is being used accurately. I.e., "bigot" has a meaning, which is not what the Left pretends it is.

Finally, people that engage in homosexual behavior demean themselves. And, accurately describing their behavior causes no shame. Although, engaging in that behavior should.

By Slaw on 2013 05 03, 3:21 pm CDT

@55: "First, if the Homosexual Normalization types wanted to be married, then they would marry someone. But, that’s not what they want. Instead, they want to change the legal definition of marriage so that they can force others to pretend that their relationships are “marriages,” when in truth they are not."

Huh? How many gay friends do you have? Of the other gay people I know, there are plenty who "married" someone, insofar as they had a ceremony with friends and family, PRIOR to there being any legal recognition of that ceremony or the fact that they commit to live their lives together.

Now they want the legal recognition to go with their marriage so that they are not strangers before the law and society.

"Second, Leftists use the same language about Conservatives and Christians all the time. The only difference is that when I used call them “anti-marriage bigots,” language is being used accurately. I.e., “bigot” has a meaning, which is not what the Left pretends it is."

Bigots are those who would use a personal position to harm other people. LGBT people are harmed by the current state of marriage laws. Disagreement =/= bigotry, callous disregard to the harm inflicted on others does.

"Finally, people that engage in homosexual behavior demean themselves."

And there is the blatant bigotry. Thank you for not dressing it up in other language.

By EsqinAustin on 2013 05 03, 3:23 pm CDT

I plugged @Slaw's argument into Babelfish to get a translation and it gave me this:

"Bros doing bros is icky, so they shouldn't have the same rights as us."

By Handy Andy on 2013 05 03, 3:25 pm CDT

@57: Babelfish speaks the truth.

I, personally, welcome the candor of people such as Slaw and Scott. It cuts through the b.s. language they use to try to provide a "rational" reason to oppose same-sex marriage and goes to the heart of the matter for all to see - they are deeply prejudiced against homosexuals.

I welcome such truth because it allows society to deal with the prejudice in a more head-on way. It also tells me to avoid those people in real life at all costs.

By EsqinAustin on 2013 05 03, 3:26 pm CDT

In my State, same sex marriage is like same sex procreation in that neither happens here.
Rights? Everyone talks about gay so-called "rights," I've got my own right -- my personal right to not recognize same sex marriage, which I don't and won't. If you disagree, complain while I laugh at your complaints. it makes my day.

By Realist on 2013 05 03, 3:43 pm CDT

@"Esq"inAustin: You wrote: "And there is the blatant bigotry. Thank you for not dressing it up in other language."

Like I already wrote, Leftists pretend "bigot" means anyone with whom the Leftists disagree. In truth, a bigot is someone who intolerantly or obstinately defends his point of view. The people who fit that definition of the word are those on the side of the Homosexual Normalization Lobby.

Moreover, you're calling my position "blatant bigotry" is itself bigotry. Hilarious.

By Slaw on 2013 05 03, 3:45 pm CDT

@60: "Moreover, you’re calling my position “blatant bigotry” is itself bigotry. Hilarious."

That has the same logic as saying, "calling a racist a bigot is itself bigotry" in that there is no logic in such a statement.

By EsqinAustin on 2013 05 03, 3:47 pm CDT

@60: Oh, and you are putting the "Esq" in my handle in quotes now? I really must be ruffling your feathers if you would resort to such passive-aggressive displays. :o)

Please, continue telling me how calling homosexuals "demeaning" is not bigotry.

By EsqinAustin on 2013 05 03, 3:49 pm CDT

Slaw writes: "a bigot is someone who intolerantly or obstinately defends his point of view"


I REST MY CASE

By Legallyblonde on 2013 05 03, 3:49 pm CDT

@"Esq"inAustin:

"That has the same logic as saying, “calling a racist a bigot is itself bigotry” in that there is no logic in such a statement."

Thank you for, unintentionally, admitting that you have no idea what bigotry is. An racist can be a bigot (and most of the time racists are also bigots). However, a person opposed to racism against black Americans can also be a bigot. For example, the race-hustling poverty pimp Jackson is a bigot.

By Slaw on 2013 05 03, 3:52 pm CDT

@64 - If Jackson is a bigot, it is not because he fervently opposes those that are racist. Likewise, those who point out your bigotry here are not bigots because of that action.

By NoleLaw on 2013 05 03, 3:56 pm CDT

@"Esq"inAustin "Oh, and you are putting the “Esq” in my handle in quotes now?"

Yes, because it's hard to believe that someone can make such stupid comments and pass the Texas Bar. I knew some people that didn't pass on their first tries, but they never said things as ridiculous as what your stating. The quotes are simply to allow for the strong possibility that you're a secretary or "paralegal" pretending.

"Please, continue telling me how calling homosexuals “demeaning” is not bigotry."

First, I called the behavior that homosexuals engage in "demeaning." Second, stating that fact is not "bigotry." I'm fully aware that people disagree with me, and that's fine. But, I'm not going to change my mind just because it's currently fashionable. After investigating the subject, I've come to the conclusions that I hold in good faith.

By Slaw on 2013 05 03, 3:58 pm CDT

Please stop feeding the trolls - EsqinA and Nolelaw. It only encourages their repeated reguritation of nonsense.

By Marc on 2013 05 03, 4:13 pm CDT

@50: "Marriage is a term meaning the combining of two things. When you render a court decision you “marry” the facts and the law”. When you create a song you “marry” the lyrics with the music.
It’s a social institution whereby two people enter into mutual legal commitments."

Why do you define it as "two"?

By Marc on 2013 05 03, 4:13 pm CDT

The undisputable fact is that if you accept the arguments in favor of SSM, there is absolutely no rational basis to limit marriage to two persons, or that the parties not be related by blood. Absolutely none.

By Marc on 2013 05 03, 4:16 pm CDT

@66: "Yes, because it’s hard to believe that someone can make such stupid comments and pass the Texas Bar. "

Wow...insulting me professionally...nice.

Just FYI, I passed both TX and NY bars on the first try. Just FYI, bar exams are not exactly difficult if one knows how to approach them. If you think passage of a bar exam denotes the presence of intelligence or reasoning skills, then you never took one. Just like there are plenty of people who fail a bar exam yet make great attorneys.

By EsqinAustin on 2013 05 03, 4:16 pm CDT

As far as a rational basis for DOMA, how about: taxpayers' MONEY? As in, at the time ALL the tax laws and federal benefits laws and whatever other federal laws exist referencing "marriage" or "spouse" were written, the term was inarguably INTENDED by the legislatures passing the laws to mean the traditional one-man-one-woman arrangement. If DOMA is struck down, then literally millions more people will become "entitled" to federal benefits and tax breaks, at a potential, eventual cost of billions of dollars. I know "fiscal responsibility" is oh so out of vogue right now, but trying to keep a lid on the exploding federal debt seems eminently "rational" to me.

By Just Some Bloke on 2013 05 03, 4:22 pm CDT

@71: One man/one woman marriage implicates almost all laws realted to persons and their relationship. Almost all laws will need to be rewritten and chaos is going to ensue.

The only way to address this is not to identify people by gender. Everyone is a unit.

By Marc on 2013 05 03, 4:26 pm CDT

@marc

"The only way to address this is not to identify people by [sex]. Everyone is a unit."

This is incorrect because everyone cannot unify, i.e., only one man and one woman can organically unite.

By Slaw on 2013 05 03, 4:45 pm CDT

@EsqinAustin

"Wow…insulting me professionally…nice."

What a clown. After all of the nasty things you've posted in response to my posts. Ha, good one. You're going to pretend to be a wilting flower? Maybe you'll take your ball and go home next.

By Slaw on 2013 05 03, 4:48 pm CDT

@71 California defines first cousins as a marriage. Texas does not. Iowa defines common law as a marriage. California does not. Although states have different laws of who may legally wed it doesn't pose a problem to the filing of 1040s and likewise when 2 people file as married in New York I don't see why their sex should be a problem in processing.

What seems a larger and more confusing problem is living in New York legally married and filing your state taxes as married and filing your federal return as single.

I have no idea of how many people will eventually marry in the 10 states where it is now legal. But I think that is one of the points for SS couples. Living with a partner they should enjoy all the benefits and breaks that heterosexual couples receive. Are you really posing a 'legal' argument that this shouldn't occur for fiscal reasons?

If it makes you feel better remember that at any time over 50% of the heterosexual marriages are dissolving and losing their federal marital benefits. Then consider the sales and sales tax of wedding gowns, tux rentals, flowers, reception halls, wedding cakes, limos - weddings are a big revenue business. Not to mention the additional source of revenue to divorce attorneys when there are "gay" divorcees.

By Legallyblonde on 2013 05 03, 4:54 pm CDT

@71 - Money alone does not provide a rational basis when the distinction used to make the savings is based on sex, and/or when the rights restricted are fundamental rights such as privacy and right to marry.

By NoleLaw on 2013 05 03, 4:58 pm CDT

@74: "After all of the nasty things you’ve posted in response to my posts."

Pointing out bigotry or prejudice does not call into question one's professional abilities. There are plenty of such persons admitted to the bar.

By EsqinAustin on 2013 05 03, 5:51 pm CDT

@72 chaos is going to ensue.

The rallying cry of all those afraid of change. The chaos never materializes, just the hysteria.

By Moderate Centrist Independent on 2013 05 03, 6:36 pm CDT

@ 35 Dirk Johanson - Love to see haters displaying their hate in plain language for all to see.

I talk about single parent households with a female head of house. I am thinking for example about military wives whose husband was killed in action protecting the country. You think about unwed mothers automatically. In spite of the fact that TANF is absolutely limited to five years out of the lifetime of the mother, you assume that her main source of support for her family is that she is a person who made bad decisions mooching.off the rest of us who made good decisions. You also say that she is probably single because " those single mothers are generally single for one core reason: their own decision to reject the sincere guys that would have stuck around to raise a child with them." I look at the prevalence of domestic violence by men towards women, and suspect that if the father of the children wanted to stick around and she left, it is a good chance that she did not appreciate being used as a punching bag, knocked down stairs, belittled, and choked, and she did not want her children growing up in that type of household.

By Kit on 2013 05 03, 7:29 pm CDT

Marriage is not about sexual relations with a partner, as heterosexual marriage between a man and a woman has amply demonstrated. Half of married couples of male female pairings end in divorce, and many that don't end in divorce involve substantial amounts of infidelity. Many marriages end up being stable between couples that for medical or physical or psychological or spiritual reasons are celibate. Then there are green card marriages that are marriages of convenience that may or may not ever have been consummated as required by law but where for most of the marriage the couple lives in separate rooms as separate adults with their own lives.

Marriage provides a more stable environment for raising children. This is also why a large number of gay couples want to marry. Several people have commented that same sex couples can't have biological children. This is so obviously nonsense that it is ridiculous. In many, perhaps most states, if a man / woman couple is married, any children that the woman conceives, carries to term, and delivers are assumed legally to be the child of the married couple unless the married couple institutes an investigation and it is proven otherwise. Using the same logic, a marriage between two women has twice the chance of resulting in children, whether they were conceived by in vitro fertilization or in vivo fertilization by a sexual partner outside the marriage. A male male couple would have to prove paternity, but again any children conceived during the marriage by either partner could be automatically considered the child of both people in the couple once the paternity of one was established. If the biological mother in this case also wants to be on the birth certificate, we just need to have a birth certificate with three spaces for parents names or write two people in the space for father. Similarly if a lesbian couple conceive a child during a marriage both parents should legally be automatically the mothers of the child, with the male allowed to be listed as the father but he would not be a party to the marriage any more than any other person who has not married either mother.

If you do not like what you think someone else does with their sexual partner, just don't think about it. Think of them as hugging and kissing and nothing else. You don't spend a lot of time thinking about what your heterosexual married friends do in the bedroom, so afford gays the same courtesy.

Gays are less likely than heterosexuals to be pedophiles according to crime statistics. So don't worry about sexual abuse of children by homosexuals any more than you worry about it with any of your friends and neighbors. If a child shows several signs and symptoms of being abused, report it whether the child belongs to your best friend,or your worst enemy, or the homosexual couple down the block. Social Services will investigate, and it may well be the nice hetero sexual neighbor that most of the kids love who is the actual perpetrator, not the gay couple that are raising the child.

Let any two adults who are not immediate family members marry. It may reduce revenue a little but at best a blip in the national budget. preventing that is not grounds for discrimination.

By Kit on 2013 05 03, 7:58 pm CDT

Yea, Kit, OK. You were thinking of the few military widows, who number in the low thousands at most out of the 10s of millions of single mothers, yet seamlessly segued into how violent men supposedly are. Of course, by doing so, you prove my point. Single mothers, by and large, blow off the nice sincere guys for the violent thugs that turn them on. You want the nice sincere guys - and everyone else - to subsidize the cost of that sex, effectively cuckolding the nice, sincere guys.

I do advocate one major change in policy for single mothers: legalizing prostitution, so they can afford to pay their own bills instead of push the cost of their sex lives onto everyone else.

By DirkJohanson on 2013 05 03, 8:00 pm CDT

Chemerinsky is slipping.
In the following sentence, "he or she" should have been "he and she".
"Justice Elena Kagan pointed out that a 55-year-old heterosexual [couple] can marry even though he or she may not procreate."

Need more proof? How about the third word of this sentence? "It was interestingly that both Justice Kennedy and Justice Samuel A. Alito Jr. pointed out the lack of studies on the effects of same-sex marriage on children."

You know what I dream of? I dream of Justice Scalia shocking the hell out of everyone by writing the majority opinion, even though this might pave the way for a majority of Republicans in the Senate and in the State legislatures by utterly removing the issue of gay marriage from local and national elections. (Probably permanently, because the demographics show that the vast majority of young people favor gay marriage. It would be like the Republicans ending slavery. Oh, that's right...)

I dream of Justice Scalia shocking the hell out of everyone. I dream of Scalia destroying the Democratic base, nationally and locally. I dream of an even darker skinned, right wing, Republican president, who is personally against gay marriage, but who could just ignore the issue with the right majority decision from Justice Scalia.

But this is just what I dream. Not necessarily what I want.

By Tom Youngjohn on 2013 05 03, 8:25 pm CDT

The only reason to oppose gay marriage is the Bible. We have a separation of church and state in this country. End of discussion. The institution of marriage has already been "destroyed" by heterosexual couples, thank you very much, so that argument flies right out the window. Kim Kartrashian shouldn't have any more right to get married for 72 days than a committed gay couple to marry for a lifetime.

By Jules on 2013 05 03, 8:34 pm CDT

@15 - please do elaborate as to which "widespread social problems" you attribute to "single motherhood" and I'd like to see some statistics to back that up. Also, how you go about comparing one parent to two (homosexual) parents and deciding that the outcome will be equally "problematic." Your logic escapes me at the moment..

By Jules on 2013 05 03, 8:39 pm CDT

Phil Byler - My husband and I (a heterosexal couple) have been trying to conceive for 5 years, to no avail. I think it's safe to say that we are unable to procreate together without some medical assistance/interference. Shall we pass a law that requires us to get a divorce and me to spend my life as a spinster since I cannot "procreate"? So incredibly ignorant. If you have nothing intelligent to add to the debate other than dubious claims that "stability" may be achieved via a heterosexual household (current rates of spousal abuse, child abuse and divorce notwithstanding), then maybe just don't write anything.

By Jules on 2013 05 03, 8:44 pm CDT

I have been away earning a living as a working lawyer, so I am returning to this site to see where the comments have gone. A few observations:

For those who assert that it is "hate" and bigotry to support the traditional definition of marriage as between one man and one woman, the answer is that you are not making a reasoned argument. Support of traditional marriage, which has been with us for thousands of years, is all about just that. Traditional marriage is supported because of the social benefits of traditional marriage, not because of any feelings toward individual homosexuals. As I wrote above @19, society has a right to protect traditional marriage as the best and preferred means of having and raising children and as providing a certain social stability. Gay couples cannot procreate; it is a fact of nature. A family with a male father and female mother provides the best environment for raising children. People with real lives know these facts.

For those who assert that it is just opposing change to support the traditional definition of marriage as between one man and one woman, the answer is that you are begging the question. Some change is good; the American Revolution was good in ushering into history the world history's greatest nation; Edmund Burke supported the American Revolution. Some change is not good; the French Revolution was not good in leading to the guillotine, revolutionary terror and another authoritarian goovernment; Edmund Burke opposed strenuously the French Revolution.

For those who assert that is is a right to marry, you also are begging the question. If it is not just someone of the opposite sex, then with whom do you have a right to marry? Two men? Three women? Your dog or cat? One man, one woman and a pet? And where does the source of that right come from? One problem that Chereminskyhas is that he believes in a right to marry that encompasses other than the traditional one man-one woman coupling, but he cannot define sensibly the source of that right other than personal belief; and that is not the basis for constitutional decision.

Finally, Sotomayer's example establishes nothing. That you may identify individual instances when an heterosexual couple cannot procreate does not invalidate drawing the line at hetereosexual couples; 100% of gay couples cannot procreate by natural means.

And @82, you can dream about Scalia being a lefty on this issue, but that is not going to happen.

By Phil Byler on 2013 05 03, 8:50 pm CDT

@86: "A family with a male father and female mother provides the best environment for raising children. People with real lives know these facts."

Holy batman, circular reasoning (and anecdotal evidence)!

By EsqinAustin on 2013 05 03, 8:52 pm CDT

@84:

Of all single mothers in America, only 6.5 percent of them are widows, 37.8 percent are divorced, and 41.3 percent gave birth out of wedlock.

According to the Index of Leading Cultural Indicators, children from single-parent families account for 63 percent of all youth suicides, 70 percent of all teenage pregnancies, 71 percent of all adolescent chemical/substance abuse, 80 percent of all prison inmates, and 90 percent of all homeless and runaway children.

A 2008 study led by Georgia State University economist Benjamin Scafidi found that single mothers — unwed or divorced — cost the US taxpayer $112 billion every year.

According to the US Justice Department crime statistics, domestic abuse is virtually nonexistent for married women living with their husbands. From 1993 to 2005, the number of married women victimized by their husbands ranged from 0.9 to 3.2 per 1000. Domestic violence was about 40 times more likely among divorced or separated women, ranging from 37.7 to 118.5 per 1000. Even never married women were more than twice as likely to be victims of domestic violence as married women.

By Marc on 2013 05 03, 8:57 pm CDT

Phil Byler - I would like to ask, again for something - anything - concrete to back up your assertions above that:

heterosexual couples provide "stability"
that US is the "the world history’s greatest nation" (holy batman, indeed!)
that you have a real life

By Jules on 2013 05 03, 9:00 pm CDT

@18 - Kit: The story about Indiana trying to legislate a change in Pi is not just a story. A bill was proposed in 1897, passed on house of the state legislature but not the other. Of course, there is much more to the story... http://mentalfloss.com/article/30214/new-math-time-indiana-tried-change-pi-32

By BamBam on 2013 05 03, 9:07 pm CDT

@88 - thank you for those statistics. I think they show that children are best raised in two-parent families (although I have to assume that is probably due to increased earning capacity and not some intrinsic defect in single parents). I think these statistics say absolutely nothing as to what gender these parents must be. I have some statistics I'd also like to share with you regarding heterosexual marriage:

■41 percent of first marriages end in divorce.
■60 percent of second marriages end in divorce.
■73 percent of third marriages end in divorce

Following divorce, children are fifty percent more likely to develop health problems than two parent families.
People who come from broken homes are almost twice as likely to attempt suicide.
Children of divorced parents are twice as likely to drop out of high school.
Adult children of divorce tend to have: lower paying jobs and less college than their parents.

Let's make divorce illegal. It is destroying the institution of marriage and the children who are involved.

By Jules on 2013 05 03, 9:16 pm CDT

@83: "The only reason to oppose gay marriage is the Bible. We have a separation of church and state in this country. End of discussion."

Absolute hogwash.

@85: "My husband and I (a heterosexal couple) have been trying to conceive for 5 years, to no avail. I think it’s safe to say that we are unable to procreate together without some medical assistance/interference. Shall we pass a law that requires us to get a divorce and me to spend my life as a spinster since I cannot “procreate”? So incredibly ignorant."

You do not abolish an institution because of an exception. Talk about ignorance.

By Marc on 2013 05 03, 9:18 pm CDT

@91: " I think they show that children are best raised in two-parent families (although I have to assume that is probably due to increased earning capacity and not some intrinsic defect in single parents)."

Wrong.

Children who grow up in two parent homes are more likely to live fuller lives, according to a newly released British study. The interesting part of this study is that the economic status or welfare of the family does not matter.

By Marc on 2013 05 03, 9:23 pm CDT

First of all, Prof Chemerinski is brilliant and I'm grateful he's willing to share his analysis in a no-cost forum like this.

For in-house counsel, these decisions can't come soon enough. It's an administrative nightmare to administer employment benefits under DOMA. Every day, same sex spouses of employees who are laid off are denied COBRA insurance benefits, retirement benefits, etc. These are real people who lose real benefits for no reason except that they're gay. Employers have to single out gay employees and tax their partners' health benefits to the tune of hundreds of dollars a year in unfair taxes.

It is depressing to read the blatantly discriminatory comments posted here, against fellow Americans who just want to get married, take care of each other and raise a family together. Here's hoping SCOTUS helps America beat New Zealand to become the 12th country to allow gay marriage!

By SunnyCA on 2013 05 03, 9:31 pm CDT

@93 That still doesn't invalidate homosexual couples as effective, stability providing parents. I stand by my comment that heterosexual divorce is more devastating to children than happily married homosexual parents.

Phil Byler - I think the line can be drawn at informed consent. Animals, children and inanimate objects are unable to consent to a marriage. Why draw the line at consenting adults? I guess I am saying that polygamy would fit within my view of things, and although I wouldn't want to be wife #3, I don't necessarily see a huge moral or legal problem with it.

By Jules on 2013 05 03, 9:34 pm CDT

Of course it is not required that heterosexuals agree to have children in order to marry. But it used to be "required", by virtue of social, religious and community norms, that when they did have children, it occur within marriage. These norms have been grievously eroded. That has been enormously destructive to children, as a group, and to our society.

After the fact--after a child had been born out of wedlock and had to endure taunts that he was a "bastard"--these norms could cause real suffering. But before the fact, they shaped future behavior in ways that were very useful for society and for most children. Those norms may have gotten in the way of some adult "freedoms"--the man's "freedom" to have sex without consequence and the woman's "freedom" to have children without a father--but we used to worry more about the child's growth and development. Today: not so much.

By Wine Country Dude on 2013 05 03, 9:45 pm CDT

Legallyblonde @ 75: your first two paragraphs seem nonresponsive to me; maybe I'm missing your point, but I'm not suggesting that all states must have the same definitions of marriage, just that if the feds radically redefine marriage to include a scenario that was never contemplated when, e.g., the tax code was enacted, it WILL have an enormous real-world effect in terms of dollars & cents. And no, I'm not really posing a legal argument -- I have mixed feelings on the whole gay marriage issue -- I'm just asking a question, which is, can fiscal constraints be considered a "rational basis" for a law? Nolelaw @ 76 suggests not, but I don't know, it makes sense to me.

As far as "making me feel better," thank you for your consideration but I feel just fine, thanks. I think your statistics are actually erroneous, but yes, lots of husbands & wives get divorced. Not really seeing how that is material to the debate either (except it makes me wonder why the hell gays even want to get married, LOL!) Re your expressed belief that "Living with a partner, [gays] should enjoy all the benefits and breaks that heterosexual couples receive," well, that's just the expression of an opinion, the real question is why? Any two people can write wills, sign healthcare powers of attorney, etc. if that's all it's really about. I think the answer has to rest on what one believes the fundamental "purpose" of marriage is. If one believes that its *primary* purpose is to create an optimal structure for the procreation and survival of the species, then it makes sense to limit it to a man and a woman. The counter-argument that not all hetero couples can or choose to have children is a red herring; just because not all ballplayers get a hit when they come up to bat -- and sometimes intentionally don't even try -- does not change the fact that the primary purpose of going to the plate is to score runs.

Nole @ 76 -- and again I'm just asking -- is that your opinion or has SCOTUS so said? To me the idea that costs cannot be a "rational basis" for a law seems bizarre, but given the upside-down world in which we're living, I guess it wouldn't totally shock me. Also, just as an aside, I disagree with you that DOMA makes a distinction based on sex (gender); males and females are treated exactly the same under the statute. Every rule draws lines and "discriminates" against someone somehow, that doesn't make it unconstitutional.

Jules @ 83-85: insulting other people and being super-strident in expressing your beliefs is not going to convert anyone to your cause. People of good conscience can disagree about whether the Constitution does, or should, enshrine protections based on sexual preferences. "The Bible" is not the only reason people reject or question the idea of gay marriage.

By Just Some Bloke on 2013 05 03, 9:46 pm CDT

@ 81 Dirk Johanson - I think about military widows not because they are more numerous obviously, but because I am interested in veterans and military families as an area of law. I know that they are a relatively small number. But they are a very important group to support and every time you make blanket insults about female single parent households, you are insulting some of the best and bravest women in the country, and I am tired of it. There are other widows as well as military widows and veterans widows, and many of them also deserve better than your gratuitous insults.

I just used your own words of hate speech toward all female single heads of households to show your tendency to insult whole classes of people without thought for those in the group that don't fit the insults that you are throwing at it to show the unjustified nature of some of your frequent blanket ad hominem attacks.

On domestic violence you are simply using circular reasoning. Yes there are more reports of domestic violence from women who are leaving a relationship than from women who are staying. Did it ever occur to you that this might be because it is too dangerous for women who can't find a way to leave to report the violence against them and their children? There is substantial evidence that supports this hypothesis. Or it is possible that women are conditioned in many instances to accept domestic violence as a price of marriage until it becomes so dangerous that the only choice is to leave. I have anecdotal evidence that there can be significant unreported domestic violence when a woman still hopes that the marriage can work. Anecdotal evidence is not relevant here so I am not including it.

Moreover, an unknown percentage of single mothers are victims of unreported rape. In many circumstance reporting a rape only revictimizes a woman and accomplishes nothing. Until society makes rape a rare crime, these victims deserve the support of society, because it was society that still leaves so many women and girls so vulnerable. It is not always that these girls and women sought out violent men. Sometimes they just did not have a way to escape them, which in many cases is the fault of society, not the woman.

As I have said before, I agree that prostitution should be legal for the prostitute. This might help protect those who are unable to survive any other way. I am not sure that it should be legal for either the customer or the procurer (aka the john and the pimp). I have nothing against prostitutes. As you have said elsewhere, some of them are very nice people and deserve much better working conditions. I still think that poverty and lack of protection are driving many of these nice people, women, girls, boys, and occasionally men to make a living in too risky a way for our society to tolerate this situation as it is.

But this is the wrong thread for that discussion.

My point is that many of the comments here by people who oppose gay marriage are also showing substantial and generalize intolerance to other groups of people many of whom do not deserve that hate. I suspect that dislike or hatred of gays is behind much dislike of gay marriage.

If that is the real reason you dislike the idea of gay marriage, why not just say, "I dislike gays, so to discourage gays, I want marriage to be only for heterosexuals" or something like that?

I think that argument makes more sense than most of the anti "gay marriage" arguments that I have seen, and makes you seem like a more reasonable and rational person than saying "it will harm children to allow gays to marry" or similar arguments that have no basis in prior events.

By Kit on 2013 05 03, 9:49 pm CDT

@97 My comments were directed at Phil Byler, and I was insulted by his suggestion that people such as myself - a heterosexual female - who are unable to "procreate" due to health reasons should not be allowed to marry. So pardon me if I insulted that obtuse stance.

By Jules on 2013 05 03, 9:54 pm CDT

@Slaw, so under your definition, when heterosexual couples engage or unite in the exact same way/behavior of homosexuals, then there is no "uniting" going on?

By Leviticus on 2013 05 03, 10:00 pm CDT

"The oral arguments left no doubt that there are four votes to recognize a right to marriage equality for gays and lesbians–Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Kagan. The key, of course, lies with Justice Kennedy. In contemplating what he might do, it is worth remembering that there have been two decisions in American history expanding rights for gays and lesbians: Romer v. Evans (1996) and Lawrence v. Texas (2003). The majority opinion in both cases was written by Anthony Kennedy."

Well true Chemerinsky. However, Lawrence v Texas was based on the Due Process Clause. Romer v Evans based on specifically denying rights that are afforded to everyone.

However as reported Kennedy over and over referred to the definition of marriage being a matter of the states. Kennedy: "the historic commitment of marriage, and of questions of the rights of children, to the states"

By Legallyblonde on 2013 05 03, 10:23 pm CDT

I don't usually like Chereminsky much, but if the topic is What three things are pretty clear now that the dust has settled on the oral arguments, I think the answer is He's absolutely right.

What Chereminsky can't possibly clarify is, "What should ABA Journal commenters agree is the right way for America to live with its gay population?" Luckily, he didn't waste time trying; nor do I.

Indeed, he can't even clarify this: "What will the key Justice(s) really WANT to do so badly that the logical problems in the Constitutional analysis can't stop 'em?" It's just as well that he didn't guess.

Yet that last question alone is what will establish the law of the land.

By Avon on 2013 05 03, 10:32 pm CDT

Prof. Chemerinsky: "At oral argument, the justices pointed out that heterosexual couples always have been able to marry even if they lack the ability or desire to procreate. Justice Elena Kagan pointed out that a 55-year-old heterosexual can marry even though he or she may not procreate."

Most heterosexual couples want children and do have children, and encouraging parents to invest in their children and give them a mother and a father is the purpose of the special financial and property benefits that constitute state-sanctioned marriage. That a minority of couples do not have children doesn't deny the policy and purpose of state-sanctioned marriage.

With respect to Justice Kagan's question, a 55-year-old heterosexual woman who marries (1) likely already has children by a former husband (2) and, if lacking children, could still seek children via a surrogate or by adoption.

The present policy tolerates the minority of couples who "lack the ability or desire to procreate" because it would be extremely intrusive, costly, and often impossible for the State to try to identify and then deny or retroactively revoke marriage benefits for them.

Mark Adams Brown
San Angelo, Texas
May 3, 2013

By Mark Adams Brown on 2013 05 03, 10:42 pm CDT

@103: "because it would be extremely intrusive, costly, and often impossible for the State to try to identify and then deny or retroactively revoke marriage benefits for them."

Hardly. We could deal with many of such persons by prohibiting unmarried persons over a certain age from entering into marriage, for instance.

In terms of intrusiveness, I suppose it would be intrusive for the state to require heterosexual couples to supply proof of reproduction in order to maintain recognition of their marriage.

Of course, it's already intrusive of the state to not recognize marriages between two homosexuals, so perhaps we do not really care about the intrusion of the state?

By EsqinAustin on 2013 05 03, 10:45 pm CDT

Sorry to bust the discrimination card that some people are playing here, but not being bisexual is also discrimination. I happen not to be bisexual - when it comes to sex, I discriminate against guys in favor of women. I'd like to hear a gay person speak with similar candor - and don't tell me its inherent - you can always give a member of the opposite sex oral, and love.

@Kit, You are right that my original comment about single mothers did paint with a bit of a broad brush, although when you spoke of the ridicule and such directed to single mothers which I responded to, you know darn well it isn't military widows that are ridiculed. And BTW, while single motherhood was ridiculed decades ago - again, not military widows, or any widows, for that matter - its generalized lionized in the mainstream media and by politicians today, so you're painting an outdated picture.

As for domestic violence, you are the company you keep. The unleashing of female sexuality for the bad boy in recent years is reaping the harvest that it sowed. In fact, the increased attention of law enforcement - 70% of LEO calls nationally are for alleged domestic violence - is yet another way the nice guys are being cuckolded, because they are paying the bill so women can have that dangerous, thuggy guy that is so in vogue. Yes, we all know there are exceptions - the nice guy who suddenly became violent, etc. Whatever - lets not pretend we don't know what the larger trend is.

Anyway, first of all, I don't know where you get the idea I don't like gay people, though I suppose anyone who doesn't swallow their whole agenda whole these days is equated with being a member of the KKK. In fact, I support gay marriage. I think marriage has gotten so ridiculous that it only makes sense anymore for a small number of guys, including guys that are veritable losers, or who can land a hot chick 20 years younger, or who can get one that's passable with rich parents, or political types that want to appear respectable by not playing the field, and on a purely theoretically standpoint, I don't believe marriage is the business of the state. However, on a practical level, its great for single guys. The more "bisexual" women have to take themselves seriously in a relationship, the more they'll hate each other and will start hating women as much as they hate men (domestic violence rates in same sex female relationships are substantially higher than in mixed gender relationships), and the better it will be for us single guys.

By DirkJohanson on 2013 05 03, 10:45 pm CDT

Regardless of whether we personally identify with the beliefs held by those who created our Constitution, and regardless of whether we can appreciate the challeges they had to overcome and the evils that were tolerated in order to form our Constitution, it is the Constitution by which we are bound as a society to be governed. There are a lot of great points made on both sides of the issues throughout this thread as to whether "marriage" ought to be redefined to include same sex relationships, but we give our judges and lawyers too much authority, or they assume too much for themselves, when they prevent the people from debating and deciding the issue of same sex marriage through laws enacted by elected legislators. It is also an affront to the Constitution that we have elected officials who refuse to enforce the law with respect to this very important matter.
The Constitution provides a process for amendment, and it also gives us the process for making the laws that govern our society. Some argue that one's sexual orientation warrants protected class status. I think this debate should be about whether to change the law through either process (amending the constitution or the statutes passed under authority of the Constitution), not how the Constituion can be "interpreted" in order to solve every perceived injustice. The professor is all too comfortable letting our judges sort it out.

By Tyler on 2013 05 03, 11:15 pm CDT

Jules @99: It would help if you would read more carefully. One of my comments was that heterosexual couples who could not conceive would still be allowed to marry despite the inability to conceive. My point was that the fact there were a few in the class of heterosexual couples who could not conceive did not invalidate drawing a line to allow any and all hetereosexual couples to marry, even the inability to conceive was true of 100% of homosexual couples who owuld ot be allowed to marry. I had in mind Justice Sotomaier's comment at oral argument.

By Phil Byler on 2013 05 04, 12:20 am CDT

@86: So you believe that some left wing academic who cooks up a study to support a predetermined conclusion supportive of a leftist agenda is superior to the experience of real people living real lives? Pathetic.

By Phil Byler on 2013 05 04, 12:25 am CDT

@85: You misread my comment, so let me try again. Hetereosexual couples who cannot conceive are able to marry and stay married because the line drawn for marriage permits all heterosexual couples to get married -- period. Your objection to not allowing a heterosexual couple who cannot conceive to amrry or stay married only illustrates the point that you don't exclude such hetereosexual couples from marriage. Homosexual couples should not be "married" because, among other things, 100% of homosexual couples cannot conceive naturally.

By Phil Byler on 2013 05 04, 12:31 am CDT

My comments in #53 was not based on hatred of homosexuals at all nor was it intended to promote hate for for homosexuals in general. The intent was to expose the fraudlent basiis for their movement in that their claims are equal to the claims of the Black Movement of the late 1950's and early 60's. Throughout their history, homesexuals dwelled in society domenated by people sexually attracted to the opposite sex, and were still able to enjoy all the opportunities in the same way that hertosexuals did because they obviously had the advantage over the Black to hide their sexuality.
Therefor, unlike the blacks they became lawyers, doctors, politicians, teachers, movie stars and so on and so forth.; and consequently they enjoyed the good life and accumulated great wealth.
With their power today, they are demanding acceptance and change of the clulture. What I detest is this unworthy demand to turn our long standing traditional values. Call me a bigot, but remember their is no law against bigotry nor does the constitution provide for protection against bigotry.

By Scott D'Ambrose on 2013 05 04, 12:34 am CDT

Of course it is easier for a single homosexual individual to pass as heterosexual than it is for most blacks to pass as white.

The problem associated with the widespread illegality of same sex marriage is that it is no easier for a homosexual couple to pass as a heterosexual couple than it is for a black to pass as a white unless one is transgender as well and is passing successfully as the opposite gender, and the male partner doesn't mind that his male partner is passing as a woman all the time, or the female partner doesn't mind that her female partner is passing as a man all the time. Now this describes only a minute number of gay couples. And there are light skinned blacks who passed as whites in about the same ratio to the total black population as there are gay couples with one transgender partner who is successfully passing.

So while a celibate homosexual is indistinct from a celibate heterosexual, a homosexual couple is obvious, and is obviously being deprived of the rights that the couple would have if one of them were of a different sex. Since there is legal recognition of long term heterosexual couples, there ought in fairness be legal recognition of long term homosexual couples, especially long term couples of either type who want to create and raise children.

And stop this nonsense about homosexual couples can't have children without some type of special intervention. They can do it exactly the same way that a substantial number of heterosexual couples have children, by having sex with someone other than their long term partner. The only difference is that the long term partner in a homosexual partnership is never fooled into thinking that it was just the two of them that created the child, and occasionally the heterosexual partner is successfully fooled. But homosexual people having children can do it just as naturally as anyone else, either on purpose or by accident or by rape. In case no one explained about mammalian reproduction to you, all it requires is that sperm meets egg while the uterus has adequate blood supply and hormones to facilitate attachment to the uterine wall. It does not matter if the sperm producer and the egg producer / uterus provider are married to each other or like each other. Male ejaculate in or near vagina with no barrier or other contraceptive at a certain time in the female monthly cycle, and there is a good chance of a pregnancy resulting at least after repeated attempts and sometimes on the first attempt.

When a child is conceived and carried to term, it is a very good thing for society if the people who plan to raise the child together are allowed to receive the traditional benefits accorded to married people who raise a child together. The easiest way to ensure same benefits is to call the long term commitment the same thing. In the case of two people getting together to prepare to raise a child is usually called marriage. This is why gays want "marriage." It is not about "redefining" marriage, it is about applying the traditional definition of marriage to all pairs of people that want it, regardless of sex and gender of each person in the pair.

In fact, I am heterosexual, but I might prefer to raise a child with another woman if she is willing to bear the child. She might date women on the side, and I might date men on the side, and the two of us might sleep in separate beds or bedrooms, or not, but as long as we together do a good job of raising and protecting the children, who cares what either of our sexual orientation is?

By Kit on 2013 05 04, 2:32 am CDT

The entire focus of the legal aspects of the marriage equality debate has been misguided and misdirected throughout the process.

Marriage historically is really about the sanctification of partiular sexual conduct and the context in which it occurs, not about any one person's sexual orientation. Some sex, between some people, in some contexts, was and is permitted and encouraged, while other sex, between other people, in other contexts, was and is excluded as unworthy of the sanctification the force of law brings. It is simply a question of where one draws the line. And it has evolved over time, with different cultures, religions and societies resolving the questions differently. But all line drawing, and all law making, involves discrimination of a sort, and the legislating of morality. Whether marriage "equality" is upheld, or not, for so long as marriage and sexual expression remain regulated and encouraged by the state, lines will still be drawn and morality will still be legislated with every law and every legal decision, particularly in the arena of sexual expression, leaving some forms of marriage and sexual expression less equal than others.

For example, whether gay marriage is upheld, or not, polygamous marriages will not, for now in the United States, be recognized. That is discrimination of a sort against the behavior of consenting adults, and the legislating of a prevailing morality. But it is not an equal protection issue.

Instead, the real questions should be:

(1) Is there a rational basis for drawing the lines with respect to the conduct in question?; and

(2) If reasoned people could disagree, how do we resolve the dispute?

The answers seem fairly obvious when the questions are framed this way:

(1) A reasoned person might conclude that "traditional" marriage, between no more than two consenting adults of opposite biological genders, who are committed to a lifetime union, who are open to the possibility of children resulting from the physical union, and who are beyond a certain degree of consanguinity, being more aligned with apparent biology, and coupled with a desire to protect religious freedom, should be the only type of sexual conduct we encourage through the state recognition/santification of marriage (even if one recognizes that another reasoned person might conclude differently). We might also therefore rationally conclude that "discrimination" against all other types of sexual relationships, no matter who wants to engage in them, by not recognizing and encouraging them as a marriage (as opposed to criminalizing the conduct), is also permissible.

(2) If reasoned arguments can be made in support of traditional marriage on this basis (even if others might have reasoned arguments for supporting a different view as to where to draw the line), the process ought to be left to how we have agreed to resolve most of our disputes--majority rule, even if that leaves different outcomes in place in different places.

Applying that rule here would suggest that Prop 8 should have been upheld, and the lower courts' decisions stricken, and likewise, that DOMA should be upheld and the lower court's decision stricken. Similarly, it would suggest that Maryland's democratically enacted statute reaching a different conclusion would also be upheld if challenged, absent any finding of infringement on other rights.

If Justice Kennedy were to reach this result, upholding DOMA and Prop 8, one might avoid a Roe like divide. And if marriage equality is now only a matter of time, as its advocates suggest, it would be worth the wait to allow the democratic process to "evolve," even if it means waiting for it and allowing for a sufficient "engagement" period before the wedding night.

By Vradeen Sengir on 2013 05 04, 10:44 am CDT

@ 112 - I would agree with you if the main point of marriage in the eyes of the law were sanctioning sexual conduct.

But I do not think it is. I think the main point of marriage as it interfaces with law is forming a stable, not easily dissolved domestic corporation. This provides a stable home environment for children, at least compared to the alternative. Ideally it also allows spouses to invest in each other as a way of providing for the future of both of them.

Having been severely disabled while single and living alone I find that the latter aspect of domestic security is something I wish I could have had. Not that I would have expected a partner to stick around forever taking care of me, but I sure wasn't going to have an opportunity to find a partner at that point.

Any couple that raises children, biological or adopted, knows how important the security of a real family is to the children.are considered strangers is ridiculous.

If the federal government merely mandated that all states must give full faith and credit to all domestic unions of certain types (of which marriage would be the primary but not only type of union) and agreed to have the federal government do the same, I would feel that then waiting for change was reasonable. But expecting people married in one state, or forming a civil union in one state to spend the rest of their lives in that one state because everywhere else in the country they are officially considered to be strangers is ridiculous while according heterosexual couples married status automatically in all states, tribes, territories, possessions, DC and the federal government.

As long as you don't make homosexual sex illegal, I am okay with making gays wait until people in a state are ready to say that homosexual sex is sanctioned. But inheritance, hospital visitation, protection of children, can't wait. That is what is blatant discrimination against same sex couples.

By Kit on 2013 05 04, 12:40 pm CDT

@ Vradeen 112: "the process ought to be left to how we have agreed to resolve most of our disputes—majority rule"

Here's the problem with that argument: according to recent polling, the majority of Americans favors making same-sex marriage legal. (Example: http://www.politico.com/story/2013/04/constitution-gay-marriage-decision-89618.html) For those who don't want to read the article, a poll released last month placed opinions on SSM at 50% for, 41% against, 9% unsure/no answer. It's likely a slim majority (unless all 9% break against SSM), but it's still a majority.

"we encourage through the state recognition/santification of marriage"

I wanted to pull this out because I think it shows one of the main points of contention: a significant portion of the anti-SSM group feel that marriage is a holy/sanctified/religious matter. As such, it should be protected from dilution.

My response: you are a lawyer; you know how to separate the conventional meaning of a thing from its 'legal' meaning. We do it all the time. We consider a corporation--a wholly legal fiction created to facilitate group action--to be a 'person' for purposes of bankruptcy relief, political spending, etc. We say that someone is 'assaulted' when they are *not* physically touched, only threatened with physical touch. Etc. etc.

Right now, whatever it may mean to you spiritually, marriage as a legal institution is a quick and dirty way for federal and state governments to grant a set of rights to two people who have chosen to bind themselves together. Some of those rights are procreative in nature (e.g. automatic paternity for husband when wife gives birth), but many are not (e.g. automatic next-of-kin status; marital privilege against testifying). If what you really want is for everyone to treat marriage as a holy institution, then to be internally consistent your argument needs to be that government should not grant *any* marriage, homosexual or heterosexual. Instead, the government should only grant rights packages to those who apply for domestic partnership status (or however you'd like to phrase it).

By JC on 2013 05 04, 1:32 pm CDT

RE: according to recent polling, the majority of Americans favors making same-sex marriage legal. (Example: http://www.politico.com/story/2013/04/constitution-gay-marriage-decision-89618.html)
For those who don't want to read the article, a poll released last month placed opinions on SSM at 50% for, 41% against, 9% unsure/no answer. It's likely a slim majority (unless all 9% break against SSM), but it's still a majority.
Polls can show anything they want. It depends on sampling of those surveyed & how the questions are asked. What is more important is how people voted. As stated prior the Preamble states "We the people" not we those sampled or those that judge.
RE: Separation of Church and State. The Constitution allows for "free exercise of religion." "CONGRESS SHALL MAKE NO LAW on ESTABLISHMENT OF RELIGION, or prohibiting the free exercise thereof, ........ " This provision states nothing about separation of church and state, 1947, in the case Everson v. Board of Education, the Supreme Court declared, "The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach."

By Pacific on 2013 05 04, 2:02 pm CDT

@115: Everson was one-time Klansman Justice Black's re-writing of the First Amendment to the extent that Jefferson's language from a private letter to a Baptist congregation in Connecticut represented a change from the original meaning of the First Amendment. Jefferson wrote to the Connecticut Baptists at a time Connecticut still had an established state religion (Congregatiolnal Church) and was giving assurances about the protection of reilgious minorities. Jefferson's language was taken starting in 1947 to mean more than the metaphoriocal flourish that it was.

A superb history of the First Amendment's religion clause is provided in Professor Philip Hamburger's "Separation of Church and State."

By Phil Byler on 2013 05 04, 2:15 pm CDT

Prof. Chemerinsky: "In a particularly important question, Justice Kennedy pointed out that there are 40,000 children in California being raised by same-sex couples and he asked why these children should not have the benefits of married parents."

More fundamentally, why shouldn't these 40,000 children have the same foundational and formative benefit that all other children have - to be born to, and the opportunity to be raised by, a mother and father? Isn't that a fundamental right of children?

Artificially creating children, with the premeditated intent to deny them a mother and a father, whether by mono-sex couples or single adults, is child abuse, and should be banned. (I believe it has been at least partially banned in France.) The "Human Rights Campaign" of the homosexual activists tramples on children's rights and leads to this anomaly: If parents deny their offspring child support, the parents are jailed. But if parents deny their child the fundamental right to a mother and father, the parents are saluted for "advancing" human rights and their act of child abuse is transmogrified into an argument that the mono-sex "parents" are being denied equal protection.

The willingness to provide maternal AND paternal parenting to children who might be born to a marriage should be a precondition to qualify for the special property and financial benefits that society gives to spouses.

In our constitutional republic, isn't the only mechanism for protecting the fundamental right to be born to a mother and father the mechanism of legislation, rather than judicial activism, since the not-yet-conceived children cannot file a lawsuit? Shouldn't the U.S. Supreme Court recognize and protect the constitutional right of States to enact such legislation?


Mark Adams Brown
San Angelo, Texas
May 4, 2013

By Mark Adams Brown on 2013 05 04, 4:30 pm CDT

Tell me what a man can do that a woman can't, outside of sex and procreation, neither of which you are supposed to do with your child, or with any child.

You can't.

There isn't anything.

Two parents who want and love a child are good for a child even if both are men, or both are women.

By Kit on 2013 05 04, 4:41 pm CDT

@comment 74

"Pointing out bigotry or prejudice does not call into question one’s professional abilities. There are plenty of such persons admitted to the bar."

You haven't "pointed out bigotry" because none existed, except for your own, of course. Moreover, what calls into question your professional abilities is the lazy thinking that must underlie calling everyone with whom you disagree a "bigot."

Again, a bigot is someone who obstinately or intolerantly defends his point of view. A bigot is not someone who defends his point of view. The key words that you're apparently missing are "obstinately or intolerantly." Coming to the conclusion that the Homosexual Normalization Lobby is advocating destructive policies (e.g., creating a legal fiction that a homosexual relationship could be a "marriage") is not bigotry. Calling everyone who thinks that homosexual conduct is immoral is bigotry.

By Slaw on 2013 05 04, 4:41 pm CDT

@118:

You wrote: "Tell me what a man can do that a woman can’t, outside of sex and procreation, neither of which you are supposed to do with your child, or with any child."

Are you being serious? Do you understand why that sentence is so absurd? Tell me what a Ferrari can do that a Yugo can't, outside of accelerating really fast, looking cool, and not breaking down because it's not built in a communist country, neither of which your supposed to do with your garden hose?

Your qualifier, "outside of sex and procreation," makes your question meaningless. And, "neither of which you are supposed to do with your child, or with any child" is a non-sequitor.

Men and women are different. And they were designed in a way that only the coupling of one man and one woman is biologically complementary. You pretending otherwise, notwithstanding.

By Slaw on 2013 05 04, 5:04 pm CDT

Thanks for the comments JC-114 and Kit-113. I didn’t take a side on the ultimate outcome other than to say to let the process of majority rule play out. I address a few of your points.
To JC's first point, the majority, through the Prop. 8 election and through elected members of Congress and a president for DOMA, expressed their views using a democratic process. Majorities, as your poll data points out, can change--but the rule of law, particularly when dealing with contentious issues on which reasonable minds can disagree, is best served when the rule is established through a legitimate process whereby a majority (or their accountable, elected representatives) makes the decision. If one is addressing a sweeping issue better to have Prop 8 and DOMA repealed through a plebiscite or legislation than stricken by judicial fiat. Why not let the democratic process play itself out?
As to Kit's point, I do think the marriage benefits the state conveys in their origins absolutely were, and I would submit still are, an endorsement and encouragement that some types of particular sexual conduct (heterosexual sex) should occur in a particular context (marriage). Although other types of sexual conduct are permitted (I am with you 100% Kit on your last paragraph in post 113), they don't get a particular “preferred” status because they don’t involve the same potential biological considerations. Still other types of sexual expression are prohibited. However, so long as we draw lines in the form of laws (especially laws that convey rights and benefits), some forms of conduct and types of status will fall on one side, and other forms and types will fall on the other side. Rational, unbiased people can disagree about where the lines should be drawn and who should receive certain benefits from the state, and why they should. But, to return to my main point, when they disagree, more democracy, not less, is the way to address it.
But why, to address JC’s second point (no distinctions), convey benefits on one type of sexual relationship (heterosexual marriage) as opposed to all other types of sexual relationships?
As a legal construct, at its origins, marriage likely was a necessity because of the wildly unpredictable long-term procreative aspects of heterosexual sexual activity. Whether it be Sarah and Abraham, failed birth control, or some passionate night on a beach, all the responsibilities and burdens that potentially flow from heterosexual sex in the form of children, enshrining (or limiting) that kind of sexual relationship in the "permanence" marriage was, and perhaps remains, a necessity. Stripped of the religion, romance, emotion and mystery which has built up around sexuality, and distilled to their practical essence, the old restrictions on premarital sex, adultery, divorce, and plural marriage, all probably primarily find their true origins in the practical consideration of the risks, burdens and responsibilities heterosexual sex inherently involves. Simply put, children, and the state, do better with children exposed to and supported by the diversity that a stable marital relationship between a biological mother and a biological father provides (which absolutely isn’t to say that other relationships that nurture children are not valuable, positive and important—and preferable to making children wards of the state). The state’s main interest in conveying the benefits of marriage on a limited group, isn’t to encourage the creation of children, rather it is to encourage those sexual relationships that might result in children being created towards stability and permanence. Justice Sotomayer's line of questioning had the analysis backwards.
But it is, of course, a lot to require, encourage or even strongly suggest, that people limit themselves to one person in sickness, for poorer, or for worse (‘til death do us part) in part to address the state’s interest in defraying the expense and responsibilities towards the children which may result from heterosexual activity. Because of this burden, society can rightly convey certain prizes, status, rewards and benefits to married heterosexual couples (that last beyond the years in which they likely might have children) to incentivize heterosexuals to give their sexual relationships permanence. Conversely, absent potential biological imperative, marriage is not a necessity, and the rewards and benefits that go with the burdens and the responsibilities, need not be conveyed.
Finally, with respect to Kit's last point, people should be able to associate with whomever they want, leave their property to whomever they want, live with whomever they want, own property together, have insurance with whomever they purchase it for as a dependent and be visited in the hospital by whomever they want, largely free from government interference. But those are basic economic and personal freedoms that should have nothing to do with sex or marriage.

By Vradeen Sengir on 2013 05 04, 6:39 pm CDT

@slaw 120.
so under your definition, when heterosexual couples engage or unite in the exact same way/behavior of homosexuals, then there is no “uniting” going on? By the way this has absolutely nothing to do with children.

By Leviticus on 2013 05 05, 12:29 am CDT

@122
Not a biologically complementary union. What an absurd question. Do people unite when someone sticks his toe in another's mouth? Of course not.

By Slaw on 2013 05 05, 12:40 am CDT

@123. So then, if opposite sex couples ALSO engage in behaviors that you consider a NON- biologically complementary union, it must NOT be a legal requirement for civil marriage?

By Leviticus on 2013 05 05, 1:03 am CDT

@124

Why don't you read what you just wrote. You can't seriously be this dense.

By Slaw on 2013 05 05, 1:29 am CDT

"Support of traditional marriage, which has been with us for thousands of years......."

What version of traditional marriage are you advocating for? The version where the man owns the wife? The version where the woman is legally subordinated to the husband? The version where the man is married to more than one wife?

I am unimpressed that traditional marriage (that is different-sex couple marriage) is ancient. So is slavery. That doesn't imbue it with virtue. And all this bluster, yet no one is trying to get rid of different-sex couple marriage, just add same-sex couples to the mix. Why on earth is that so problematic to you "traditional" marriage advocates?

By JeffreyRO5 on 2013 05 05, 2:00 am CDT

@125
Slaw you said "Marriage contains the foregoing elements, which can be satisfied (i.e., one woman and one man can physically and mentally/emotionally unite; they have biological complementarity)."
Opposite sex couples and heterosexual couples both unite, biological complementarity is therefore not requirement for either set of couples.
-- Therefore I would ask, "What is your point?"

By Leviticus on 2013 05 05, 2:01 am CDT

@121

That was a whole lot of stuff but falsely premised. If marriage is a privileged status, its status is vis-a-vis the unmarried, not those of different sexual orientation. In other words, unless you think letting gay couples also get married will discourage straight couples from getting married (unlikely), there's no reason to exclude same-sex couples from marriage. The "privilege" from marriage derives from the "unprivileged" status of being unmarried, not from being straight.

The state is welcome to privilege marriage (to, say, promote having two parents, straight or gay, raising the children) but must offer the status to all who might meaningfully benefit from it. Or at least not exclude all who are similarly situated with regard to the purpose of marriage: creating stable family units, particularly to benefit child-rearing.

By JeffreyRO5 on 2013 05 05, 2:16 am CDT

Several people commenting here say over and over again that it is important for children to have a mother (female) and a father (male) and that just having two parents of the same sex is not nearly as good for the children.

But these same people ridicule me instead of answering me when I ask, what can males do for the children that females can't do for the children? what can females do for the children that males can't do for the children? Other than wet nursing or breast feeding, which some females do for some children after the children are born, for a relatively short period of time, I cannot think of a thing. At least not anything that it is legal to do with children in any of the 50 states, territories, commonwealths, tribal lands, or the District of Columbia. As I said, we are not about to encourage parents to procreate with their own children, and that is the only other set of activities, besides breast feeding, which only one sex can do with someone of a certain sex.

A man can be a great cook. A woman can be a great auto mechanic, hunter, sports coach. A man can be a great seamstress or teller of bedtime stories. Whatever a child needs can be provided by a parent of either gender. A male parent can be a great role model for a boy or a girl. A female parent can be a great role model for a boy or a girl.

Two parents seems to be a good thing for a child. Being a single parent seems to be harder on the parent, and having a single parent seems to be harder on a child.

So society decided it was good for society to provide extra support for a couple that wants to raise a child together. This seems to have been a good decision for society. So why don't we want society to support any couple that wants to provide a stable loving environment to protect and nurture children?

Because we only want children to be raised by couples that are sexually irresponsible? That seems to be what some people here are suggesting. Heterosexual couples have children by accident half the time, whereas homosexual couples usually plan to have a child when they have a child. So homosexual couples should not be supported by society while raising children, only the irresponsible heterosexuals. Boy that argument makes a lot of sense!

By Kit on 2013 05 05, 4:14 am CDT

Those of us who have successfully raised kids in a successfully maintained traditional marriage living in communities where the universal norm for raising kids was traditional marriage read the arguments here for treating same sex couples as the same as traditional marriage and find those arguments to be just plain nonsense.

The benefits of traditional marriage to society are such that "the People" have every right to give it privileged status and did so in DOMA and Proposition 8. There is no constitutional basis for saying that "the People" can't do that.

By Phil Byler on 2013 05 05, 4:40 am CDT

@103 So you don't buy Justice Kennedy's argument that their is legal injury to the children of same-sex couples who cannot marry? How is Kennedy's argument nonsense? Can't the people then just decide they don't like the outcome of mixed race children from interracial marriage and vote to invalidate those marriages? You like the two wolves and a lamb argument by voting on what to eat for lunch? Majority rules right?

By Leviticus on 2013 05 05, 7:17 am CDT

Same sex cupples don't "have" children as a matter of natural procreation. There are not thousands of years of same sex couples raising children. What's more, the experience of same sex couples in Europe having the option to "marry" is that only a small percentage are interestedin "marrying" much less adopting chldren.

As we are all out of Africa according to our DNA, race is but skin pigmentation; and yes, couples with different skin pigmentation can and do have children (one in fact is now President), mixed "race childern are something we have known for thousands of years and mixed "race" marriages are part of what some of us call traditional marriage.

What is called "race" is an immutable physical characteristic and an irrational basis for distinction. What is called sexual orientation is a behavior which can be controlled and even changed. The two are not equivalent.

By Phil Byler on 2013 05 05, 9:43 am CDT

@127

You wrote: "Opposite sex couples and heterosexual couples both unite, biological complementarity is therefore not requirement for either set of couples."

Why don't you re-read your sentence. Did you mean to write it that way?

Assuming you didn't, no, homosexual behavior can never be biologically complementary. It can never result in procreation.

By Slaw on 2013 05 05, 11:26 am CDT

Where fundamental right in issue, is standing really an issue? Is homosexual relation a fundamental right? Does the Constitution declare homosexual relation as right? Can a right be declared for a relation held felonious since 'time immemorial'? Does the forbearance of permitting an otherwise illegal act within the privacy of one's home constitute a 'right' to do the act? Where a 'right' under the law encompasses public expression? The people of California have spoken, and the law, so far, does not obstruct. Is Marriage a right in the expectation? Or in the possession? Indeed, is it really a privilege, seeing that, unlike property, as in the eyes, ears, nose and throat, it is not something possessed ab initio which can only be deprived for wrongdoing? And, particularly given a history of creation and enforcement by legislative fiat but, at least, from established custom and habit in the possession, and there at State level? Yes, there is significance to decide. The question is whether we follow the law, or make it, and there by judicial fiat.

By gdp on 2013 05 05, 12:19 pm CDT

@132 Phil - can your sexual orientation be changed? When I was 6 years old in kindergarten Bobby sitting next to me smiled at me and I blushed, hair stood up on my arm and my heart pounded. Over 50 years later it's only males that get that reaction from me. I'm fairly certain there isn't a psychiatrist or therapy in the world that is going to change that.

Homosexuality is not only documented in the animal world but in human society dating back to BCE. This isn't a fad of the 21st century but something that occurs naturally in 5-10% of all formed humans. In my undergrad major of Behavioral Science in Deviant Behavior (and homosexuality does NOT qualify as a deviant behavior) there is every indication and evidence that a homosexual orientation is something one is born with. My experience in kindergarten is echoed by every homosexual I have interviewed only in reverse in that their same attraction has always been same sex.

Why would anyone want to voluntarily lead the life of a minority in society if they had choice? I refuse to even engage conversation with anyone that at the start won't accept that people are born homosexual just as they are born with any other trait they have no control over and cannot change. It is at the least rude and inconsiderate to not at the start of this conversation to accept this as well as non productive.

By Legallyblonde on 2013 05 05, 1:44 pm CDT

http://www.towleroad.com/2013/05/antoine-dodson-im-no-longer-into-homosexuality-i-want-a-wife.html

Of course, very straight, aggressive guys in prison turn to it, as well.

Sorry, Legally Blonde, but its beyond rude and inconsiderate to at the start of a conversation to be forced to accept your precondition of the bogus notion that sexuality is as black and white as you insist, especially when far and away, the greatest percentage of people who have sex with people of their own sex also do so with people of the opposite sex. Your statement is the epitome of intolerance of not only other people's views, but of the facts altogether.

Also, the fact is that it is quite rare in the animal kingdom. It has even been proven that the koalas that appear to be lesbian actually play with each other as an act to attract males.


Finally, I wish I was gay; I 'd have a ready community of friends anywhere I traveled, sex is easy to come by, I wouldn't be subject to society pressures to have a traditional family, I could have chosen a fun career, and I wouldn't have to deal with women on a romantic level, which I can assure you for the vast majority of guys is a degrading and expensive process. A lot of people choose to live as minorities; for instance, immigrants flood our shores coming from places where they are the majority.

A lot of things occur naturally that are not ideal: birth defects, diseases, etc.- that doesn't mean they are set to the defaults nature intended.

By DirkJohanson on 2013 05 05, 2:43 pm CDT

So DirkJohanson, when did you decide that you would be attracted to women, not men? What were the pros and cons you weighed before making the choice?

By NoleLaw on 2013 05 05, 2:53 pm CDT

@137: You wrote: "So DirkJohanson, when did you decide that you would be attracted to women, not men? What were the pros and cons you weighed before making the choice?"

Nice try sophist. The choice isn't the person developing a disordered sexual attraction. Rather, it's if or when he acts on it.

By Slaw on 2013 05 05, 3:04 pm CDT

NoleLaw, Like most people, I didn't weigh a list of pro and cons and enter into a calculus.

By DirkJohanson on 2013 05 05, 3:09 pm CDT

"the greatest percentage of people who have sex with people of
their own sex also do so with people of the opposite sex"

This is definitely not based in fact. Perhaps this is based on some personal observation by you of your friends or yourself. Yes, my sexual orientation is black/white - I'm heterosexual. And I know others that strictly are attracted to the same sex.

Since you insist that sexual orientation is not black and white perhaps you are saying you are bi. The statements I made were referring to people that are born gay not bi and not having gay sex because they are in prison.

Ok....enough for responding to silly and illogical posts.

By Legallyblonde on 2013 05 05, 3:10 pm CDT

I agree with Legallyblonde that I see no indication that homosexual orientation is a choice any more than heterosexual orientation.

Once we eliminate people with heterosexual orientation who occasionally have homosexual encounters, there is no indication that homosexuality can be fixed, even anecdotes, since the few "homosexuals" who have been "fixed" may not have had a homosexual orientation, ever.

Homosexual Orientation is a huge disadvantage in this society, and in many societies. It would not have persisted for thousands of years if people chose to be that way.

By Kit on 2013 05 05, 3:10 pm CDT

@Legally Blonde, responded to my statement that

“the greatest percentage of people who have sex with people of
their own sex also do so with people of the opposite sex”

by stating, "This is definitely not based in fact."

Yes it is based in fact. Here are some facts. According to this CDC study:

"4% of females had a sexual experience with another female in the past 12 months.
11% of women had a same-sex sexual experience in their lifetime. This was much higher than researchers expected. Only 4.1% of women reported oral sex with another woman in a 1992 study. The 2002 study used the term "sexual experience" to be more inclusive.
3% of women have had sex with both males and females in the last 12 months."

http://lesbianlife.about.com/od/lesbiansex/a/SameSexBehavior.htm

That means 3 out of 4 (75%) women who had sex with a woman in the past 12 months also had sex with a man.

Another recent study shows that men who identify as bisexual actually have more female partners over their lifetime than men who identify as straight.

By DirkJohanson on 2013 05 05, 3:19 pm CDT

@138 - I don't think sophist means what you think it means. Give thinking a shot. It's not as bad as it sounds.

@136 and 139 - So what makes you think others do? If you truly wished you were gay as you glibly write, you'd be free to make that choice. I doubt you could though. And so what if homosexuality is rare in the animal world? It is rare among humans too. Does not make it wrong, or mean that it merits legal discrimination.

And the most telling thing is that, after over 140 posts, there is yet to be a post to put forth a rational basis legal argument (I'll set aside the more appropriate in my view intermediate scrutiny, we are dealing with discrimination on the basis of sex, after all) that would justify legal discrimination against same sex marriage.

By NoleLaw on 2013 05 05, 3:20 pm CDT

@141: "Homosexual [preference] is a huge disadvantage in this society, and in many societies. It would not have persisted for thousands of years if people chose to be that way."

The fact that some behavior is looked at with disgust or subjects its participants to ridicule is not an argument that the behavior is not, ultimately, chosen. People choose to do all kinds of things that most people think are disgusting. People stretch their earlobes, graffiti their bodies, abuse alcohol, abuse women, abuse children, etc. The fact that they're ostracized for this behavior doesn't mean they don't have a choice.

By Slaw on 2013 05 05, 3:21 pm CDT

@143:

I think you should take your own advice and look the word up.

Also, rationale basis is easily satisfied. As you know, it only requires a plausible public policy explanation. So, let's play. (1) Male homosexual behavior is responsible for the vast majority of AIDS cases (64%) and there is a strong public policy argument that law shouldn't induce that moral hazard. (2) Homosexual relationships can never be procreative, and therefore, there is no reason to create a legal fiction that homosexual relationships could be "marriages." (3) Contract law already provides a way to solve all of the supposed problems that people engaged in homosexual relationships encounter, and therefore, there is no need to harm marriage and its attendant social goods by conflating it with homosexual relationships. (4) Legally redefining marriage will lead other people engaged in aberrant behaviors to demand their relationships also qualify for a legally fictitious designation of "marriage" (e..g., adult parent and child, adult siblings, adult friends who want to transmit wealth without estate taxes or probate costs).

By Slaw on 2013 05 05, 3:36 pm CDT

Nole Law writes, "So what makes you think others do [have a choice]? If you truly wished you were gay as you glibly write, you’d be free to make that choice. I doubt you could though. And so what if homosexuality is rare in the animal world? It is rare among humans too. Does not make it wrong, or mean that it merits legal discrimination."

First, to back up, my comments are not intended to support a position one way or the other on same sex marriage. As I said in one of my comments above, I welcome same-sex marriage for selfish reasons, but do not believe marriage should be the province of the state.

Anyway, to answer your question, I'm confident many gay people sincerely do not believe it is a choice, and that many cannot foresee themselves getting aroused by a member of the opposite sex and I'm sure many are correct about that. However, the question I was answering was "why would I choose to be gay?" is always one that did not resonate with me because, as I stated, being gay has certain advantages to offset the disadvantages.

Certainly, the fact that something is rare does not make it wrong. However, again I was responding to a statement about it being documented in the animal world, and it is extremely rare in the animal world, far rarer than in the human world. And just because two male dogs stuck in a cage only with each other for a month start going at it doesn't mean that's they are hardwired for that as a first option.

By DirkJohanson on 2013 05 05, 3:41 pm CDT

@146 - Excuse me if I misunderstood your previous point. Still,

"extremely rare in the animal world..." You should read up about our closest genetic relatives, chimps and bonobos. Among the latter especially, homosexual behavior is pretty widespread.

By NoleLaw on 2013 05 05, 3:48 pm CDT

Nolelaw -

IMHO DOMA is unconstitutional because defining marriage falls under the 10th Amendment.

As to Hollingsworth I think it could go one of two ways. Either the Prop 8 proponents will be lacking standing or the court may decide that if a state grants civil unions or domestic partnerships to gay couples it then lacks any rational government interest to same sex marriage.

This later decision would be consistent with the DOMA position that defining marriage is a right of the state - just as states differ in defining the legality of cousin marriage and common law marriage.

With 39 states with same sex marriage bans I don't see the court at this time arguing for a fundamental right to same sex marriage - which can be argued as different historically than just a right to marry. We also have the problem that sexual orientation is not a recognized protected class. I'm waiting for the lawsuit to challenge the Full Faith and Credit Clause when a state doesn't recognize a legal same sex marriage from another state.

By Legallyblonde on 2013 05 05, 4:01 pm CDT

DirkJohnson @ 136: "Finally, I wish I was gay; I ‘d have a ready community of friends anywhere I traveled, sex is easy to come by, I wouldn’t be subject to society pressures to have a traditional family, I could have chosen a fun career, and I wouldn’t have to deal with women on a romantic level, which I can assure you for the vast majority of guys is a degrading and expensive process. "

Are you really that naive? Seriously, from what I know of interacting with the gay community, you'd be considered considered quite "special" -- because you'd whither under the snark. You'd find that your "friends" often had appointments to get their body hair waxed while you were in town. You would have a "fun career" because the old boys network didn't want the "issues" of gay employees in their traditional workplace, and if you come from a conservative/ethnic culture, your family would STILL rag at you to quit being so selfish and settle down and have a family.

As for traditional heterosexual dating being an expensive and humiliating process for you, perhaps the outcome would have been different if you didn't treat women you date like hookers with social benefits.

By BMF on 2013 05 05, 4:47 pm CDT

@ 147, writes, NoleLaw

"You should read up about our closest genetic relatives, chimps and bonobos. Among the latter especially, homosexual behavior is pretty widespread."


For what its worth, Jane Goodall doesn't think so with respect to chimps in the wild, and she apparently welcomes homosexuality among humans: http://www.youtube.com/watch?v=vV6NYh83k5g&noredirect=1 Also for what its worth, it appears from my minimal reading the last few minutes that bonobos are bisexual, and none are exclusively homosexual.

By DirkJohanson on 2013 05 05, 4:58 pm CDT

@149 yah, ok. LOL

By DirkJohanson on 2013 05 05, 5:02 pm CDT

Once again, I agree with Legallyblonde.

@ 148 Legallyblonde writes, " I’m waiting for the lawsuit to challenge the Full Faith and Credit Clause when a state doesn’t recognize a legal same sex marriage from another state."

To me, that is the whole problem with the state of recognizing homosexual marriage at this point in history. Marriage under law should be defined by each state, as far as people starting a marriage in that state. But once a same sex couple has started a legal marriage (gotten married) in a state that allows same sex marriage, that couple should be considered legally married in any state, just the way that if I get a drivers license in California, I am licensed to drive a motor vehicle in Texas as well. I still need to know Texas rules of the road and obey them while I am in Texas, but if I want to go on vacation by driving from Sacramento to Lubbock, I don't have to apply for drivers licenses in Nevada, Arizona, New Mexico, Oklahoma, and Texas, even if I take the scenic route getting to Lubbock.

In states that allow same sex marriage, same sex marriages should not be restricted to homosexuals, or to homosexuals and bisexuals. If I have a good friend with children whose husband has dies and who is grieving and who needs help raising her children but is not ready to face men and dating to get a husband, I should be able to marry her and help out with household expenses and child care without it being anyone's business if we both are celibate for several years. I know one widow who has mourned the death of her husband for over six years with no interest in dating. Her children are grown, so all she needed was visits and phone calls from family and friends offering support, but if her children had been younger when her husband died, having a person become a family member to help her and the children might have been a reasonable solution. Celibacy is not popular in popular culture, but it is still an option even in marriage, especially between heterosexuals of the same sex. I still think that marriage, while it often involves sex between the parties, does not require sex between the parties. Legally it is about a bundle of rights to act as a legal unit.

By Kit on 2013 05 05, 5:33 pm CDT

@152 Thank you for making a strong rationale basis argument to protect marriage and refuse to create a legal fiction that a homosexual relationship is capable of being a "marriage."

By Slaw on 2013 05 05, 5:39 pm CDT

While debating animal homosexuality why not do a little reading on human sexuality studies.

http://www.usnews.com/news/articles/2012/12/11/scientists-may-have-finally-unlocked-puzzle-of-why-people-are-gay

Sheep and penquins and other animals that seem to have same sex relationships or even mate for life unfortunately cannot talk about it. But what about my reference such as to homosexuality recorded in 600 BCE in China or what about Plato?

http://www.sciencedirect.com/science/article/pii/S0924933811734459

Did someone do a study and prove that from the earliest recorded civilizations everyone in engaging in same sex behavior didn't do it from a natural born orientation but voluntarily?

http://www.sciencedaily.com/releases/2005/01/050128221107.htm

By Legallyblonde on 2013 05 05, 5:43 pm CDT

@ 145 -
1) If anything, that is an argument for same sex marriage.
2) I asked you to provide a rational basis for denying same sex marriage. Just because procreation would not be an argument for same sex marriage does not make its absence an argument against same sex marriage.
3) Your third point is patently false. As just one example, you cannot have a tenancy by the entirety without marriage in most jurisdictions. DOMA, a subject of this article, is another example. Assuming this statement was true, the fact that a same sex couple could through multiple contractual arrangements acquire the same property rights vis-a-vis each other that a heterosexual couple could through one contract of marriage would still not be a rational basis to deny same sex couples the right to marry; at best, it would be an argument that there is no discrimination in one certain area (contract rights)
4) Once again, no support for this proposition. The slippery slope does not follow, and hey, guess what, adult friends are already free to enter into marriages for the legal benefits (whether they intend to have children or not), as long as they are opposite sex.

@148 - I don't see the 10th at play for the reasons pointed out by Dean Chemerinsky; that amendment is not seen (or has not been yet interpreted) as limiting the feds' power to define terms for federal programs.

By NoleLaw on 2013 05 05, 6:18 pm CDT

@153 - Heterosexual marriage is a legal fiction too. That is something you'll learn if you ever go to law school.

By NoleLaw on 2013 05 05, 6:28 pm CDT

NoleLaw@155-156:You are being troo clever for yourself.

1) No, it is not an argument for recognizing same sex coupling as equivalent to traditiional marriage. It is an argument for no legal recognitionat all of same sex coupling and for the old law making it criminal (not that I am advocating the latter).

2)The ability of traditional marriage for conception of children and for its superior environment for raising children is more than a rational basis for defining traditional marriage as having the privileged status of marriage. 100% of same sex couplings do not procreate becaue they can't. Society has an interest in posterity. You are oblivious to this point. People with real lives raining children aren't.

3) Contract law and partnership law do provide the means for dealing with what same sex couples wish to accompllish. To deny that reflects ignorance of contraact law and partnership law.

4) You are not facing up to reality. We are already seeing the demand for recognition of polygamy. In Sweeden, after" same sex marriage" was recognized, marriage as in institution went into severe decline.


5) Marriage cannot rightly be considered a "legal fiction." I graduated from Harvard Law School 37 years ago and have been practising law since, and I find your statement to be ridiculous. I can only understand it as a product of a bad legal ediucation; and given the left wing dominance in law schools, I am not surprised.

By Phil Byler on 2013 05 05, 6:47 pm CDT

@156 Actually, marriage existed long before it was codified in common law or statutes. So, no, it's not a legal fiction. I.e., marriage did and does exist in the natural world without creating a law that says it's so.

By Slaw on 2013 05 05, 6:50 pm CDT

If you don't want to marry someone of your own gender, then don't do it. If you do, it's none of my business or anyone else's.

Problem solved.

By AndytheLawyer on 2013 05 05, 6:59 pm CDT

@155 If the DOMA clauses were inserted in sections relating to taxing and spending where the govt has plenary power without judicial review I would agree with you. However DOMA sits in 1 U.S.C. § 7 and 28 USC § 1738. It's intended effect in 28 USC § 1738 is application to the Full, Faith and Credit Act - can you explain to me how that differs from attempting to amend the Constitution?? This is going well beyond taxing and spending.

The only way Congress could do this is by authority to define marriage. And I don't see that authority being given in the Constitution therefore it falls under the 10th. Well at least Justice Kennedy and I see it. Historically Congress has never purported to define marriage and has always accepted what is and is not a legal marriage according to the states laws.

DOMA was promoted to protect "state sovereignty" over marriage. At the time about 9 states allowed same sex marriage. How does DOMA protect state sovereignty by promoting discrimination against those state's citizens, not recognizing the acts of those sovereign states in being able to define marriage and denying federal benefits to people that in those states are recognized as "married"? This is clearly beyond the authority of the federal government. If it's not, please point out the Article where this authority was given.

By Legallyblonde on 2013 05 05, 7:23 pm CDT

I can follow Hernandez v Robles of the New York Court of Appeals...to a point. Their highlights:

1. Opposite Sex couples can accidentally create children. Single people sleep around. It is better to promote marriage that can be more stable with a long term commitment. Children grow up better with a Mother and Father.

2. Due Process - Right to same sex marriage is not "deeply rooted" in history and therefore not a fundamental right.

3. Equal Protection - Males and females are treated equally - neither are afforded right to marry someone of their own sex.

Here is where I disagree with this holding:

1. I think it's better for anyone to be in a stable relationship and not sleeping around not just heterosexuals.

2. The holding recognized that same sex couples do have children. If you recognize that there are family units whether by adoption, sperm bank or surrogacy then you should include them in your laws protecting children. Studies about the problems with children growing up in single family homes consistently show that part of these problems are caused by lack of money and part from lack of attention or discipline.

3. Is it in the best interest of children of same sex children to deny same sex marriage?

NY held it passed the EP argument because it was rationally related to a legitimate state interest - relationships that are best for children. But it lacked persuasiveness for me when it was directed just at potential children that came into the world accidentally through heterosexual conduct.

By Legallyblonde on 2013 05 05, 8:02 pm CDT

Actually, a same sex couple could accidentally have a child if one member of the couple is raped by a person of the opposite sex. Yes it is possible for a woman to rape a man in such a way as to become impregnated if the man is in some way incapacitated or immobilized. So it could happen to a male male couple, although exceedingly rarely. It could happen to a female female couple, and probably does often enough to be statistically significant. So if the reason for the state authorizing marriage with its intended benefits really is to support the children of accidental pregnancies as opposed to benefiting the children of all pregnancies accidental or intentional, it still makes sense to allow same sex marriage. Gays have exactly the same equipment for siring and bearing children as any other men and women. Gays should have the same rights to chose the person with whom they raise children as anyone else if they accidentally sire a child when a woman rapes them (cue the guffaws and rude laughter, but it is clearly biologically possible) or bear a child when a man rapes them. The rape victim should get complete custody of the child and the parental rights of the rapist should always be terminated. I always favor some acknowledgement of the parental rights of a biological parent and open adoption even by stepparents except where the biological parent represents a clear danger to the child, but to me rape always indicates that the rapist presents a clear danger to the child, whatever the circumstances. So a victim of rape should get custody of the child with the right to marry a consenting partner of their choice who is not the rapist, and the parental rights of the rapist should be automatically terminated.

If for now federal recognition of same sex marriage is limited to children of rape, well at least that is a necessary step to protect the rights of the child, who should not be discriminated against either because his or her biological parent is a rapist, or because his or her other biological parent prefers or requires a same sex spouse.

By Kit on 2013 05 06, 3:40 am CDT

Reading Kit's comments vividly demonstrates the incredible mental gymnastics that liberals will go through to make a case for "equality" for a member of their voting block. Meanwhile, she also writes, "I agree that prostitution should be legal for the prostitute. ... I am not sure that it should be legal for ... the customer ... (aka the john ... )." Equality for some (women, gays), not others (straight guys that aren't self-indentured). Hmm.

Anyway, Kit, about your proposal that rapists should have no parental rights. Are you also suggesting that, in combination with losing parental rights, the rapist get off without having to pay child support? That would be ironic if you felt they should get off the hook that way, since I happen to believe rapists are among the few classes of men that I believe should ever have to pay child support (the others being husband/fathers, and guys who contractually agreed).

By DirkJohanson on 2013 05 06, 4:22 am CDT

@ 163 - I specified prostitutes of all sexes and ages so no discrimination against you there DJ. If you want to go and sell the use of your body to strangers, I don't think you should be jailed for doing so, and if that is your job, I think you are entitled to safe working conditions.

I also think that you should have the same right to choose between not getting married and getting married to someone who is foolish enough to want to marry you with your overblown attitudes that any one else does.

I don't care whether rapists are expected to pay child support for their offspring or not. I would much rather see them rot in jail for long enough that it is a moot point. I think it is imperative that they have no right to any contact with any children they create, and no right to contact their victim. I also stated that I think this should apply equally to male rapists and to female rapists. If men raped as rarely as women, then this would apply to them as rarely as it does to women.

You are again the sexist assuming that rapists are always male and prostitutes are always female. No mental gymnastics required to realize that this is false, except perhaps for a mental midget. I do try to avoid a battle of wits with someone like you who appears to be unarmed, so don't bother replying to any more of my posts.

By Kit on 2013 05 06, 4:43 am CDT

Good article and reading.I really appreciate also the comments and replies from NoLeLaw. Bright,open minded and law educated.Thank you.GF

By Gabriel F. on 2013 05 06, 3:43 pm CDT

Please keep on topic.

<b>Lee Rawles
Web Producer
ABAJournal.com</b>

By Lee Rawles on 2013 05 06, 7:25 pm CDT

@165 - Most of the time, even I have no idea what I'm saying, so thanks for the kind words!

By NoleLaw on 2013 05 06, 7:28 pm CDT

Wow. Busy weekend y'all have been having online! Here in NYC the weather was just too good.

Phil Byler said @130 -
> Those of us who have successfully raised kids in a successfully maintained traditional marriage living in communities where the universal norm for raising kids was traditional marriage read the arguments here for treating same sex couples as the same as traditional marriage and find those arguments to be just plain nonsense.

FALSE! The majority of heterosexual married couples who have successfully raised kids in a currently "traditional" family, as I have, favor gay marriage.

Not only that, but kids have no wish that their parents be of opposite sexes, unless they are raised to "know" that it's necessary. Just as gay kids are raised to "know" that they're wrong to be who they are. However, raising kids to "know" one's own opinions is bound to backfire disastrously at some times, and to generate some needlessly rocky rejections in the teen years in most cases. If you get to know five kids who have same-sex parents and five of their peers who don't, you'll see they are all pretty much the same in griping about their parents, and/or wishing that they had a parent who (coaches) (dances) (you name it), regardless of whether they're both of the same sex.

In fact, I recommend getting to know people in the type of families you might think are undesirable!
It's not realistic for people who are "liberal" on gay rights to assume that the "traditional" folks can change their minds on logic alone. Exposure to plenty of reality will work a lot better. We found that out with indenturing kids as apprentices, selecting (arranging) their marriages, letting women vote, letting racial minorities serve in elected office, and just about everything else that used to be "traditional."

This collection of comments is going to look rather silly, and probably somewhat neanderthal, in ten years. Let's just see how things turn out before we go so far out on a limb with what "must be."

By Avon on 2013 05 06, 10:11 pm CDT

Avon @168: I believe YOU ARE MAKING UP what you write in order to asert what is ideological truth to you but in reality is utterly FALSE.

The majority of hetereosexual couples I know and from what I have been able to discern more generally steadfastly opposes what you, Avon, call gay marriage.

Kids do want a male father and a female mother. That you say otherwise shows that you don't know kids.

What I think is going to look silly in ten, twenty, thirty years from now is the kind of comment you have written. The attack on the traditional family will fail, just as the old Soviet Union failed.

By Phil Byler on 2013 05 06, 11:06 pm CDT

@168

That has to be one of the most buffoonish posts on this thread. Especially, this gem: "kids have no wish that their parents be of opposite sexes[.]" And of course, there's absolutely no evidence for that conclusory assertion. To the contrary, there is overwhelming evidence that establishes the contrary.

In addition, your claim that people will come to accept homosexual behavior if they're exposed to it. That simply isn't true. Personally, it was after a family member revealed he engaged in homosexual behavior that I began to read about the attendant politics. And, after a good faith review, I've come to the conclusion that I must oppose the Homosexual Normalization Lobby and their attempts to create a legal fiction that a homosexual relationship is capable of being a "marriage."

By Slaw on 2013 05 06, 11:17 pm CDT

Phil,

I certainly didn't make up my own family. (I never said kids want a female father or a male mother.)
But I can easily believe that I don't know the same families you do.
I didn't "attack" any traditional families. And why would I even want to attack my own, or any like it?
The polls as to who favors allowing same-sex couples to marry are not worth denying, and anecdotal stories or personal tallies don't disprove them.

For the foregoing reasons, I simply don't buy what you're saying.
I do hear you, of course. I just conclude that where you live, or in your social circles, most people are convinced of a different view than they do around here. Probably, you'd agree with that?
Where I live and grew up, most people once believed exactly what you're saying.
(Indeed, why shouldn't people's opinions vary or change? It's a free country - in most ways.)

Anyway, there's good news for those who feel same-sex marriage is wrong:
No same-sex marriage has harmed any opposite-sex marriages yet. And here in the Northeast, we've had tens of thousands of chances to see the harm, if there were any. (That's probably why such large majorities here favor gay marriage laws.)
Gay families will exist regardless, but they are more stable - and their kids feel better - if they're treated alike and not stigmatized. Having unstable, stigmatized neighbors doesn't benefit anyone's marriage or family - not mine, not yours.

By Avon on 2013 05 06, 11:37 pm CDT

Well, Slaw, not everyone who's got a homosexual relative has the same experience you do!

I'd really love to see some of the "overwhelming evidence that establishes" that children "wish that their parents be of opposite sexes[.]” I've been following the issue for years (which is hard to avoid, given that almost every state of the 10 nearest my own have agonized over, and legalized, same-sex marriages), and I've never even seen one piece of that evidence. Nor do I recall ever hearing a kid say that they're glad their parents are of opposite sex, nor hearing a kid with same-sex parents (of whom my city has thousands) say that they wish their parents were. So your "overwhelming evidence" sure has a boatload of reality to overwhelm!

I am glad to be on the topic of kids and families, not the topics of "homosexual behavior" or "ability to procreate." I personally have no taste for homosexual behavior, and the world has enough population. The kids and families are the only valid reason to permit - or to ban - their marriages.

By Avon on 2013 05 06, 11:49 pm CDT

Avon @171: The Proposition 8 case arose because "gay marriage" was voted down in the People's Republic of California. In left wing talk circles, what you write is standard. But it is not really what people believe.

Your statements of belief in there not being harm to children from same sex couples raising them and that gay couples will be more stable are at best premature. About the time that Northeast states go bankrupt from overspending, it may become evident that the social policies of the Left are bankrupt too.

By Phil Byler on 2013 05 06, 11:56 pm CDT

The vote on Prop 8 was about 48% in favor of gay marriage, which was a higher proportion than America as a whole back then. I'm not that interested in what it would be now. I certainly wouldn't want voters ever to decide the validity of my own marriage, regardless of whether or not we heterosexual couples eventually become "non grata" in the public eye.

In right wing talk circles, what you write is predominant. And it may be what those people believe. But if I want to know "what people believe," I'll listen to them - or to the experts in counting them.

The Northeast states tax and spend (well, maybe not New Hampshire!) ... but our budgets balance, and we subsidize the rest of the country. I mean, you can look at the Federal statistics as to which states send more tax money to Washington than they get back in Federal spending, and which states send less. In New York, that's a really intense sore point for some people.

I don't accept your conclusions, and that's why. But you're right that time will tell on a lot of this.

By Avon on 2013 05 07, 12:07 am CDT

Avon @172: Slaw is right about kids wanting a "normal" family with a father and a mother, whether your ideology wants to accept that fact or not.

The Left's economic and socail policies are not sustainable, and the Left's national security positions are suicidal. The Left's position on same sex couples being treated the same as traditional marriages is just one more unsustainable policy of the Left.

By Phil Byler on 2013 05 07, 12:07 am CDT

My reasons not to believe Slaw about kids wanting opposite-sex parents are not ideological!
There's no such thing as an ideology of what kids want.

I don't really think the Left has anything to do with homosexuality, either, except insofar as the issue is simple tolerance of one's neighbors. Maybe I just know so many gay and lesbian conservatives because they feel more comfortable moving to a generally liberal city than living their lives among those less tolerant of them.

"Sustainability" of a marriage policy is a new concept to me, except in religions that eschew "mixed marriages." Even there, I don't see anything unsustainable. My town has over one million Jews, and we've heard them agonize for decades about mixed marriages - yet Judaism is just as strong now as ever, despite their percentage of mixed marriages that's far higher than our percentage of homosexuals. So we'll just have to wait and see just what about gay marriage policy may collapse.

By Avon on 2013 05 07, 12:23 am CDT

Avon @176: Actually, your reasons are ideological. I spent enough time in Cambridge, Massachusetts to understand more than you think I do.

Think about this: a man-woman marriage between a Jew and a Gentile can result and has resulted in many, many children, but a same sex couple cannot procreate ever. Then learn about demographics in terms of how many kids are necessary for a society to sustain itself. When I refer to sustainability, I am referring to what society and the economy need to continue.

By Phil Byler on 2013 05 07, 12:31 am CDT

“I wish I'd had a father who was around and involved”. Barack Obama, February 16, 2013

By DirkJohanson on 2013 05 07, 12:40 am CDT

Phil, I'm not convinced that spending time in Cambridge, Massachusetts can inform you about my reasons for anything - or about whether the parents that kids want is an ideological thing. And it's odd if you know how much I think you understand ... I myself have no idea what to think you understand!

Among other things, I wonder what your understanding is of whether gays will procreate more if their marriages aren't recognized by law. My sense is that they'll have more kids, not less (by adoption, by surrogacy or via sperm donors) if their family life is normalized. Let's see evidence! Or, perhaps you're saying that if their marriages aren't allowed, then they'll marry someone of the opposite sex and procreate more? That doesn't sound too gay to me.

I get what you mean about sustainability. I still have Lyndon LaRouche's magazine issue (from back when the world had 4.5 billion people) entitled "The World Needs 10 Billion People." But when there's prosperity, whether in the Sahel or in Italy, birthrates drop along with the infant mortality, while quality of life improves. So the question is, do we want to sustain maximum numbers of homo sapiens, or maximum quality of life, or the biosphere, or what? I've got to admit, I like 'em all: people and the planet and good living.

Dirk 178, I couldn't agree more. If you've got a father (and they're any good as a parent) it's way better for them to be involved. And the kids like it better, even more so in retrospect.
If you don't (and many don't), it's way better to have male role models and nurturers than not to. And I feel likewise about female parents, too. That's probably why the studies all show that kids thrive best in two-parent households - if you haven't got a partner, at least bring in adult friends.

By Avon on 2013 05 07, 1:30 am CDT

Mr. Chemerinski has some cogent observations on the oral arguments. I particularly note the fact (as a Californian) that standing in the Prop 8 case is sketchy, as the supporters of Prop 8 would not suffer any real harm if it is overturned, or more properly, if the 9th Circuit's ruling is simply allowed to stand. On the other hand, gays will suffer real harm if Prop 8 is found to be legal. As a conservative Christian, I have doubts about the long term effects of gay marriage, however, as an American I do not want the government telling anyone what they may do in their bedroom or in their family, however they may feel it should be constructed. Christians, above all, should understand from history what it is like to be a minority with divergent views from the mainstream. If they do not, they will again understand what it means to have the weight of an oppressive government bearing down upon them.

By PHILO on 2013 05 07, 5:22 am CDT

There is nothing about raising a child that a man can do that a woman can't.

There is nothing about raising a child that a woman can do that a man can't - except breast feed. Breast feeding is a great benefit to a child at the beginning, but plenty of great kids are raised without being breast fed.

A child loses nothing of importance by having two mothers, ie female parents, or by having two fathers, ie male parents, unless other people are nasty to the child because of having same sex parents.

Some narrow minded people will be nasty to your child no matter what you do, so there is no point in running your life or your child's life to please narrow minded people.

So same sex couples should be allowed to marry their partners if they have children, because children all deserve as stable a home life as possible, and everyone posting so far seems to believe that marriage makes a couple more stable.

Same sex couples without children would also benefit from more stability and a financially more secure situation if they were permitted to marry in some states in a way that was at least given full faith and credit by other states, but if they are not currently allowed to marry it does less harm to society than it does when the parents of children are not allowed to marry their partners. Childless gay couples can either move to states where they are allowed to marry and stay there, or they can mostly wait if they have to.

But children in stable same sex parent homes are entitled to married parents NOW.

By Kit on 2013 05 07, 6:27 am CDT

@181 You wrote: "There is nothing about raising a child that a man can do that a woman can’t.
There is nothing about raising a child that a woman can do that a man can’t - except breast feed."

Right. And, obeying gravity is optional.

You also wrote: "A child loses nothing of importance by having two mothers, ie female parents"

First, a child cannot, not ever, not once, can a child have two mothers. Every child on this planet, including you, have one, and only one, mother. Second, any child unfortunate enough to have been brought into a homosexual relationship is by definition being deprived of one of his parents.

By Slaw on 2013 05 07, 12:45 pm CDT

Holy circular reasoning Batman! Slaw, you win the "most tautological arguments in a thread" contest, by far. In fact, we ought to retire your jersey, I don't think anyone is ever going to come close to your record.

By NoleLaw on 2013 05 07, 12:47 pm CDT

@179: You wrote: "Among other things, I wonder what your understanding is of whether [homosexuals] will procreate more if [they're behavior is given the legally fictitious label of "marriage."]

Legislatures (or by judicial fiat) can never create a legal fiction that will overcome the fact that a homosexual relationship can never be procreative.

By Slaw on 2013 05 07, 12:51 pm CDT

Slaw - stop being ridiculous. Plenty of gays procreate, perhaps adulterous, but then heterosexual adultery causes procreation too. Just because a gay can stand to impregnate or be impregnated naturally does not make them heterosexual, so they should have a right to marry their life partner, not be forced to marry someone that they sleep with once and find distasteful.

Gays can and do procreate naturally and occasionally accidentally. Study biology, and stop making the ridiculous argument that just because someone thinks heterosexual sex is gross they are infertile. It does not work that way.

By Kit on 2013 05 07, 1:11 pm CDT

Slaw, you probably never knew for sure who your father was. You only knew what your mother told you and the man she said was your father, same as all the rest of us. Biology 101. That probably did not scar you for life, in fact you probably never doubted her word.

By Kit on 2013 05 07, 1:17 pm CDT

Comment removed by moderator.

By Tony Glair on 2013 05 07, 1:45 pm CDT

@185

You should work on your reading comprehension. I wrote: " a homosexual relationship can never be procreative." And, that is absolutely true. Homosexual behavior can never be procreative.

Moreover, no one is arguing that people who engage in homosexual behavior should "be forced to marry someone that they sleep with once and find distasteful." We're arguing that there is no reason to legally redefine marriage. Marriage law already treats everyone equally (i.e., anyone can marry one person of the opposite sex, who's of age, and consents). But that's not good enough for the Homosexual Normalization Lobby; they don't want to be treated equally under the law. They want special privileges to legally redefine a fundamental institution of civil society so as to create the false impression that their sexual behavior is the equivalent of normal sexual relationships (i.e., a man and a woman).

By Slaw on 2013 05 07, 3:04 pm CDT

@188: "But that’s not good enough for the Homosexual Normalization Lobby; they don’t want to be treated equally under the law."

I know, right? How dare homosexuals want their relationships and love they commit to one another to be treated with the same respect under the law? How dare they not want to worry about the over 1,000 rights that automatically acocmpany a legally recognized marriage?

How dare they not want your personal dislike for homosexual behavior (whatever you personally imagine that to be, it does seem those who oppose same-sex marriage spend more time discussing homosexual acts than actual homosexuals) to not dictate their rights.

By EsqinAustin on 2013 05 07, 3:12 pm CDT

"Homosexual Normalization Lobby" - there is no such thing. It is a fiction. If you think that is clever or cute - that is also a fiction.

"create the false impression that their sexual behavior is the equivalent of normal
sexual relationships"

Normal sexual relationships for a heterosexual is one man/ one woman

Normal sexual relationships for a homosexual is either two men or two women

After reading many of these posts if given the choice I'd choose to be born gay over this ignorant and full of hatred

By Legallyblonde on 2013 05 07, 3:23 pm CDT

Normal sexual relationships for heterosexuals is one powerful guy and a bunch of fertile women.

By DirkJohanson on 2013 05 07, 4:53 pm CDT

Cole Slaw aka Cabbage Head? Would explain your difficulty grasping simple concepts if true, but you are probably of above average intelligence and so full of hate that there is no time left in your life for entertaining a new idea.

You wrote:
"Marriage law already treats everyone equally (i.e., anyone can marry one person of the opposite sex, who’s of age, and consents)." So apparently, you would be okay if a law was passed that said that anyone can marry one person of the same sex who is of age and consents, instead of the present. law? Apparently what you have trouble with is giving people a choice, because then some people would be treated differently from others?

Or maybe you feel that because homosexual sex is yucky to you, homosexuals should only marry people they find sexually repugnant?

The more you talk, the more I feel that the opposition to same sex marriage is morally bankrupt and that same sex marriage will increase rapidly at the state and federal level. Thank you for helping me move from being lukewarm in favor of the issue to strongly in favor. You made a convert, just not for your side.

Slaw, you are amazingly convincing in your demonstration that opposition to same sex marriage makes no sense what so ever, but I suppose that is usual, because no one else here has come up with really great arguments against extending marriage to allow same sex marriage. The best people seem to be able to do is show that it is less necessary than heterosexual marriage, which I will readily grant. But none of the arguments make clear whether allowing gay marriage will devalue heterosexual marriage. So probably that won't happen either.

By Kit on 2013 05 07, 4:59 pm CDT

DJ, while it is true that for a heterosexual man normal relationships is either one powerful guy and a bunch of fertile women or nothing, for a heterosexual woman normal relationships is one or two men who are as powerful as her social status can provide her with.

By Kit on 2013 05 07, 5:07 pm CDT

Kit @192, you are not so smart as you think you are. What has been expressed here again and again is that it is not about homosexuals that we define marriage in the traditional way of one man and one woman. It is about protecting and preserving a traditional institution that naturally results in procreation (which homosexual couplings can never do) and that provides the best environment for the raising of children (which the tradtitional family structure does).

The People have the right to define mariage in that way. Both U.S. Supreme Court cases resulted from an effort to invoke general constitutional language to override, in Propostion 8's case, a state constitutional provision adopted by vote of the People of a quite liberal state to defione mariage as between one man and one woman and, in DOMA's case, a statute enacted by vote of a democratically elected Congress to define mariage as between one man and one woman for the purposes of federal law. Such constitutional interpretation would be judicial activism run wild.

That you call the defense of traditional marriage "morally bankrupt" shows ignorance on your part. You write oblivious of the reasons why traditional marriage should be a socially preferred relationship. Also, in Europe where "gay marriage" has been adopted, as low as 5% of gays get "married," and traditional marriage is in decline. Many on the the political Left desire that result because traditional marriage is an obstacle to a fully socialist state.

By Phil Byler on 2013 05 07, 5:48 pm CDT

Personally, I don't care for Chemerinsky's liberal views & I don't know why the ABA is promoting them.

The issue here isn't marriage equality (that's a false narrative). Seems weird to me that we aren't addressing the real issue here regarding whether this is morally wrong and why the rest of society should be forced to officially recognize immoral behavior, which also isn't beneficial for homosexuals btw. Why not polygamy or adultery, the gov't rightly draws some red lines there doesn't it?

It's also interesting that a liberal suddenly wants to appeal to the 10th amendment for states rights while also rejecting the will of the people in the state of California, which is also a liberal state. Doesn't the federal gov't need to uniformly define marriage to determine who qualifies for deductions as married filing jointly for tax purposes?

By David A. on 2013 05 07, 8:06 pm CDT

@188: "homosexuals want their relationships and love they commit to one another to be treated with the same respect under the law"

But their relationships are not the same. Most importantly, they're incapable of being procreative. And, whether you like it or not, children are one of the biggest reasons that marriage exists. Marriage also produces the social good of not having a man out there knocking up a bunch of other women (which is why the canard about infertile couples fails on the merits). So, why create a legal fiction that a homosexual relationship is capable of being a "marriage," when in reality it can never be one?

By Slaw on 2013 05 07, 8:42 pm CDT

And Delaware just became the 11th state to legalize same-sex marriage. I tell ya, the anti-gay people in this thread are on the wrong side of this trend. :o)

By EsqinAustin on 2013 05 07, 9:07 pm CDT

If sexual orientation is genetically determined (i.e., "you're just born that way"), then why is Jason Collins's identical twin brother heterosexual???

By Just Some Bloke on 2013 05 07, 9:13 pm CDT

@198: Perhaps the same way one twin can be left-handed and one right-handed? Doesn't make that a choice, either.

Genetics allow for pre-dispositions. No one claims homosexuality is genetic in the way green eyes are.

By EsqinAustin on 2013 05 07, 9:15 pm CDT

it does seem a lot like the anti-miscegenation controversies from the not-so-distant past. Personally, I'm gently opposed to "same-race" marriages. I have a theory that genetically, we need to spread out more. My kids are mixed, and i've urged them to branch out further....please, people, mix it up...my kids seem to ahve a much bettetr temperament than me, which I attribute to better genetic diversity...

By defensive lawyer on 2013 05 07, 10:17 pm CDT

probably though, an anti-same-race marriage law would fail...even though it would be morally, physically and spiritually better, perhaps....

By defensive lawyer on 2013 05 07, 10:19 pm CDT

@ 194 Phil Byler - You think that all same sex couples are homosexuals who are engaging in immoral behavior (unspecified, and I am not going to guess or speculate about what you think they are doing. IF you want us to know what they are doing that is so horrible, tell us. I think they hold hands, hug each other, and occasionally kiss, because that is what I have seen them doing.) As far as I am concerned, a same sex couple could just as easily be two single (heterosexual) moms who think that they already have enough children and want to be able to pool resources to buy an house and help each other with childcare. Maybe not most of the same sex couples. I am not really that naive. But there is no reason that a same sex couple couldn't be a marriage of convenience. And I am not into sticking my nose into other couple's sex lives.

I am glad sodomy is not illegal because I don't want my neighbors spying in my bedroom window and calling the cops if they think I am being naughty, whether or not I ever decide to be naughty. If you think that your neighbors are being naughty, you can try inviting them over for coffee or a Bible study and talking to them, but even if you are right you cannot get them incarcerated, which in my opinion is a good thing.

You seem to think that two women cannot successfully raise children together, but you won't tell me why. You also seem to have the idea that two men cannot successfully raise children together. Do you actually have some reason why you think this is a problem? If so, why won't you tell us? I really have no idea what you think the problem is. I am pretty sure you are wrong. I remember being a child pretty well, even though it was a very long time ago. I would have been surprised if one of my friends had two men as parents or two women, and would have asked a bunch of questions, but I asked questions about everything. It would not have seemed like a big deal any more than some neighbors going to synagogue Friday evening in stead of church on Sunday. Or the fact that one of my friend's father did almost all the cooking.

By Kit on 2013 05 08, 1:48 am CDT

Kit @202: Your comment clearly demonstrates that you are not so smart as you think you are.

I make the point that defense of traditional marriage is not about homosexuals but about the benefits to society of traditional marriage, and you launch into a polemic about how I view homosexuality as immoral and how you are glad that homosexual sodomy is not illegal.

I make the point that traditional marriage provides the best environment for raising children, and write about how I think that tow women cannot successfuly raise children together.

Kit, focus on what I am writing. I could, arguendo, make my points in support of traditional marriage whether or not homosexuality is viewed as immoral and whether or not two women could possibly raise children together. I have my own beliefs concerning those subjects, but my defense of traditional marriage as a proper constitutional definition does not require them.

By Phil Byler on 2013 05 08, 2:48 am CDT

@196 Slaw

You typed: "Most importantly, they’re incapable of being procreative. And, whether you like it or not, children are one of the biggest reasons that marriage exists."

But many gay marriages are procreative. Lesbian couples have used sperm from sperm banks to impregnate one or both in the lesbian relationship and gay male couples have used donor eggs and surrogate mothers to procreate.

Furthermore, why can' t heterosexual and homosexual couples adopt children? Are you saying that children of adoption are inferior to children of procreation? If children are one of the biggest reasons that marriage exists according to you, then why can't the children of adoption be one of those reasons?

You typed: "Marriage also produces the social good of not having a man out there knocking up a bunch of other women."

Right, because no married man has ever knocked up a bunch of other women. Just look at Arnold Schwarzenegger, Jesse Jackson, Vito Fossella, Grover Cleveland, Thomas Jefferson and more.

Why didn't you also say that marriage produces the social good of not having a woman out there being knocked up a bunch of other men? Because you think that never happens? You never heard of cuckolding? Google it.

Besides, if you really think marriage produces a social good of keeping people monogamous, then why not let gays marry? This way you won't have gay men and lesbians having sex with other gay men and lesbians, respectively.

It doesn't appear that gay marriage would be more of a legal fiction than straight marriage would be.

By Plentypie on 2013 05 08, 3:58 am CDT

@194 Phil Byler

<<You typed: "It is about protecting and preserving a traditional institution that naturally results in procreation (which homosexual couplings can never do) and that provides the best environment for the raising of children (which the traditional family structure does).

The People have the right to define marriage in that way.>>

The People also have the right to define marriage so that it extends to gay couples as well.

It appears that "traditional marriage" had already been redefined by the People long before gay couples started asking for the right to marry: women are no longer expected to be homemakers regardless of what they want; people have several sexual partners before they marry (if they marry); no-fault divorce means that people can end their marriages on their own terms and not on the states' terms; the birth control pill, contraceptives and abortions have all given women choices on when and if they decide to reproduce; and many couples are having nannies/day care specialists taking care of their children.

The average marriage lasts about 7 years in the U.S. and divorce is more likely to happen after a child is born. So however you define "traditional marriage," the people have abandoned it a long time ago.

Besides, why would anyone limit marriage to natural procreation? Will states require fertility tests of all those who apply for marriage licenses and if they fail these tests, should they be denied the right to marry? If one spouse can no longer procreate due to age, illness, or any other reason, should the other spouse simply file for divorce and marry another person who can procreate? Or perhaps whatever benefits married couples receive (tax deductions, etc.) should be eliminated once that couple can no longer procreate naturally.

You do know that in polygamous marriages, the man takes on younger wives to procreate when the older wives become too old to do so. It seems you are trying to redefine marriage as being limited to those who can procreate naturally in order to prevent gays from marrying; however, in the process, you may be turning women into breeding stock that can be discarded when they can no longer procreate. If you redefine marriage on the basis of natural procreation, you may be strengthening the argument for polygamous marriages.

Marriage is so much more than natural procreation. Marrying just to procreate naturally seems to be more a marriage of convenience, just like marrying just for money. Marriage should be about love, affection, companionship, mutual respect, loyalty, trust, caring and sharing. I see no reason why heterosexuals and homosexuals should not be allowed to marry.

By Plentypie on 2013 05 08, 4:25 am CDT

No, lesbian couiples are not procreative. They have to use artificial means. The couple itself is not procreative.

You are waging war against biology.

By Phil Byler on 2013 05 08, 10:57 am CDT

Plentypie @205: The two cases recently before the U.S. Supreme Court are all about denying the People the right to define marriage legally according to the traditional definition. That is what we are concerned with here. So your comment that the People could define it differently than the traditional way does not matter in terms of the present cases.

You overstate the case of the demise of traditional marriage. Throughout the country, communities thrive with traditional marriages providing the framework for having and for the raising of children. People living real lives are quite happy in it. Also, traditional families are a necessary institution for a truly free democratic society. As Alexis de Tocqueville recognized in "Democracy in America," families were (and are) a source of strength in democratic America. Atomization in society is what radical socialists want.

Also, you seem far too enamored of artifical ways of procreation (especially when natural hetereosexual procreation is so delightful). We know that society can replenish its numbers with natural procreation with traditional marriage as the base institution. We don't know that society can do so with artificall procreation. What is possible does not define what is socially workable much less what is preferable.

Yes, my suggestion to you is to get a life.

By Phil Byler on 2013 05 08, 11:15 am CDT

Yes, homosexual couples are procreative. You are waging a war against technology. Since that is the case, stop using electronics and stop posting on websites.

By Plentypie on 2013 05 08, 3:25 pm CDT

@207 Phil Byler typed: "The two cases recently before the U.S. Supreme Court are all about denying the People the right to define marriage legally according to the traditional definition. That is what we are concerned with here. So your comment that the People could define it differently than the traditional way does not matter in terms of the present cases."

In that paragraph, you talk about how the two cases are denying the People the right to define marriage according to the traditional definition. Then at the end of the paragraph, you disregard the fact that the People could define it differently.

So what you are really saying is that you don't really care about what the People want when it differs from what you want.

And throughout the country, people are enjoying progressive marriages and progressive lifestyles and are very happy about it. Children are raised in different kinds of families and grow up to be happy, productive marriages instead of stuck in unhappy marriages.

Expanding marriages to recognize the diversity that represents America is necessary to maintain a democracy. You want to limit marriage to only one group of people. That is discrimination and not America. Restriction and classification are what radical conservatives want.

You seem far too enamored with natural procreation. Animals can procreate naturally. What distinguishes humans from animals is our intellect, flexibility and the ability to change our lives and not be restricted to just what is natural. Traditional marriage and progressive marriage, natural procreation and artificial procreation can all exist side by side.

Computers are artificial and you are apparently using them. Under your premise, we should go back to traditional communication - ink and paper. Forget about websites. If you want to go back to the 1950s, then go back all the way and give up your technology. Forget about heart surgery. Forget about all of the medical and scientific advances that we have accomplished because they are not traditional.

Yes, my suggestion is that you get a life and embrace what humans have accomplished instead of sending humans back to the past.

By Plentypie on 2013 05 08, 3:39 pm CDT

@208

Homosexual behavior can never be procreative. It's hilarious to watch Leftists go through these buffoonish contortions in an attempt to justify creating a legal fiction that a homosexual relationship is capable of being a "marriage."

By Slaw on 2013 05 08, 4:01 pm CDT

@208-209 Plentypie: Can you read? I am not disregarding anything. What you are disregarding is that what we have before us are two U.S. Supreme Court cases that are all about denying the People the right to define marriage legally according to the traditional definition. We are not dealing with cases in which a non-traditional definition of marrriage is being challenged.

You can talk about technology in a Brave New World all you want, but you disregard my point about it. I wrote: "We know that society can replenish its numbers with natural procreation with traditional marriage as the base institution. We don’t know that society can do so with artificial procreation. What is possible does not define what is socially workable much less what is preferable." You have no response to that point.

By Phil Byler on 2013 05 08, 4:10 pm CDT

@210

Homosexual behavior can be procreative and has been. It's hilarious to watch Rightists go through these buffoonish contortions, such as going back to the past, just to create a fiction that only a heterosexual relationship is capable of being a "marriage."

By Plentypie on 2013 05 08, 4:11 pm CDT

@210 plentypie: No, "homosexual behavior" cannot be procreative. Two males or two females have no way of conceiving a child.

Man-woman marriage is not a fiction; it has been a fact for thousands of years across many different cultures. So called "homosexual marriage" is what is a fiction.

By Phil Byler on 2013 05 08, 4:27 pm CDT

@211 Can you read? You are disregarding marriages that don't fit your definition of procreation and that would include a lot of heterosexual marriages as well.

There are no laws in the U.S. that prevent a heterosexual couple the right to marry because they can't procreate. So who says that is what the People want? That is what you want but there is nothing anywhere to indicate that the People want that as well.

The two U.S. Supreme Court cases are about extending the right of marriage to gay couples. You want to redefine marriage in such a narrow way so that even certain heterosexual couples (those who can't procreate naturally) won't be able to marry. Where did you get the idea that this is what the People want?

We know what artificial procreation can do - create babies. It has been done. Where have you been? One thing about artificial procreation is that people actually plan to have their babies whereas in natural procreation, about half of the conceptions were accidents. When you compare the track records of natural procreation and artificial procreation, natural procreation doesn't necessarily come out ahead. You have no response to that.

By Plentypie on 2013 05 08, 4:31 pm CDT

@213 Phil Byler

Yes, homosexual behavior can be procreative and has been.

Man-woman marriage for thousands of year was based on the fact that one man procreated with several wives.

Man-woman marriage was about men dominating women. How is that for traditional marriage? It sounds that man-woman marriage for the longest time was the fiction. A marriage in which one dominates the other is not a marriage but a fiction.

By Plentypie on 2013 05 08, 4:34 pm CDT

Phil @ 206 and Slaw @ 210 -

The fact that you define "procreative" differently than others totally explains the different conclusions.

But I think it flunks the laugh test to say that marriage was traditionally defined strictly as an enshrinement of sex-act fetishism, as opposed to being defined by its (supposed) sole or main purpose of having kids and raising them.
And I think it flunks the feasibility test to define procreation as "natural" or "artificial."
Indeed, I think it's a novel legal and Constitutional concept that only activist judges could adopt.

If the procreative purpose is fulfilled, the "naturalness" of the means is legally irrelevant. Avoiding "artificial" means is not a prerequisite for other situations under the law. And the Constitution really isn't amenable to determining whether insemination is natural, or whether Viagra is artificial.

Besides, what's "natural" is by no means constant as you assume. For crying out loud, the People (worldwide) these days accept almost nothing that was considered "natural" millenia ago, and the people then accepted very little of what is considered "natural" in any area of modern life today. To define who's married by what's natural just opens the door to redefining marriage MORE often.

Excluding same-sex couples from what is deemed to be a marriage under the law makes as little sense, "naturally" speaking, as excluding people who survive due to chemotherapy from who is legally deemed to be alive.

So these are judgment calls, and personal judgments vary among people. OK, it's a free country.
But they're stuff that the People shouldn't be legislating by majority rule on an issue-by-issue basis.
They're stuff that rests on inalienable rights, insofar as our Constitution and law recognize rights.
We must defer to the outcome of the process of those who emphatically have the province and duty to decide that.

By Avon on 2013 05 08, 4:37 pm CDT

@214 Plentypie: No, you can't read.

The issue presented in one Supreme Court case is the constitutionality of California's Proposition 8 which defined, in the State Constitution, marriage as between one man and one woman. The issue presented in the other Supreme Court case is the constitutionality of DOMA which defined marriage as between one man and one woman for federal law purposed. So I am not redefining marriage. The voters of the State of California and the U.S. Congress adopted that definition in accordance with the traditional definition of marriage in this country. Until recently, homosexual couples have not been recognized as "marriage."

"Homosexual behavior" (your words) is not procreative. You have to use artificial means; and that brings us back to my point, which I repeat again: "We know that society can replenish its numbers with natural procreation with traditional marriage as the base institution. We don’t know that society can do so with artificial procreation. What is possible does not define what is socially workable much less what is preferable.” You still have no response to that point.

By Phil Byler on 2013 05 08, 4:43 pm CDT

No, Plentypie, slaw and I are using words according to what they mean. It is Leftists such as you who want to redefine words to mean something else to serve your socialist Brave New World. You can have it.

By Phil Byler on 2013 05 08, 4:51 pm CDT

@217 No, Phil Byler you are the one who can't read.

You kept talking about how the People have a right to define marriage - based on natural procreation. Nowhere in the U.S. does any jurisdiction prevent marriage if the couple can't create a child through natural procreation. That is your definition, not the People's definition. You are trying to redefine marriage and trying to claim that the People want your definition. They do not. The two U.S. Supreme Court cases have nothing to do with that. And until recently (the late 1960s), interracial marriage was not legally recognized in many U.S. jurisdictions. That changed. And until 1920, women did not have the right to vote. That changed.

Homosexual behavior is procreative. Whatever means you have to use doesn't make it less procreative. If a person has heart surgery in order to correct a life-threatening heart problem and the heart surgery saves that person's life, that person is still alive even though s/he was saved through artificial means.

We know what artificial procreation can do - create babies. Just like we know that heart surgery saves lives. That is my response and you can't accept it.

In the U.S., half of all conceptions are by accident. In an overcrowded world, is that feasible? Natural procreation can lead to an unintended child, which the parents may not be prepared to care for. But with artificial procreation and/or adoption, people actually plan for the children that come into their lives.

Homosexual couples can have sex without worrying about unwanted pregnancies unlike heterosexual couples.

So actually, artificial procreation may be better than natural procreation. You still have no response to that.

Maybe the State of California and the rest of the U.S. should vote on heterosexual marriage and natural procreation. Let's see what the People want.

By Plentypie on 2013 05 08, 5:15 pm CDT

@218 Phil Byler

No, Phil Byler, you and Slaw are creating your own definitions of marriage. It's Rightists like you that want to redefine words to mean something else to serve your Oppressive Old World. The rest of us in society have advanced.

By Plentypie on 2013 05 08, 5:19 pm CDT

@220 Plentypies: That is what socialists say as they make a complete hash of things and inflict on the people perverse oppression. You do not represent an advancement. The future does not belong to you.

By Phil Byler on 2013 05 08, 5:39 pm CDT

@221 Phil Byler: That is what rightists say as they insist on going back to a time period where they were on top at the expense of those who didn't meet the oppressive categories that were imposed on them. You do not control the future. My future belongs to me. Your future belongs to you. Stop trying to control other people's futures just because you are not comfortable with their decisions.

By Plentypie on 2013 05 08, 5:45 pm CDT

In case Slaw and Phil Byler have missed it, two more states have legalized same sex marriage in the past week, bringing the total to 11. A decade ago, that total was at 0. A majority of Americans now support legalizing same-sex marriage. Big change from merely 10 years ago. You might be blind to it, but the "popular will" aspect of your positions inevitably leads to a legal recognition of same sex marriage, no matter how much you harrumph.

And of course, constitutional rights are not subject to the whims of a popular vote in any case (absent the amendment process). There is no problem with SCOTUS determining whether DOMA and Prop 8 are permissible under the federal constitution; that is the Court's job.

You can keep spinning your wheels about procreation (irrelevant) and notions of traditional marriage (misguided - you can be certain that the rights of married women now differ drastically from those rights when the country was founded, as a basic example), but you and those holding your views are and will continue to change your minds, die out, or simply be marginalized and shamed into keeping your archaic theories about the moral inferiority of homosexuals and their relationships to yourselves, much as the Dixiecrats of a bygone era.

By NoleLaw on 2013 05 08, 8:07 pm CDT

Marriage isn't about having kids. Certainly not in the USA, where the percentage of births outside wedlock is enormous and the number of married people choosing not to have kids continues to climb.

By AndytheLawyer on 2013 05 08, 8:36 pm CDT

Ah, the arrogance of ignorance.

By Marc on 2013 05 08, 9:45 pm CDT

Has anyone else here noticed that the rationalizations last week for same sex marriage were that monkeys have gay sex in the wild and that the bans are like those against interracial marriages, but now the arguments have suddenly become that we should support same sex marriage because its this high-tech eugenics thingee?

By DirkJohanson on 2013 05 08, 10:22 pm CDT

@226 DirkJohanson

Yes, and there lies the beauty of humanity.

By Plentypie on 2013 05 08, 11:53 pm CDT

@225

Which you display at every opportunity, Marc.

By Doodle Dandy on 2013 05 09, 12:27 am CDT

The Corruption of the alleged 'legal' system by the Gaystapo is nearly complete, aided of course by a bought and paid for 'free press' and a pathetic farce of Academentia where MISANDRY (Hatred of Men, Masculinity and Normal Heterosexuality) is The tenure track.

As regards 'Standing' in the Proposition 8 - Attack on Marriage Scam - the Massive Coverup of the Blackmail of Governot 'Der Arnold' Schwarzenegger (forced to throw Marriage under 'Der Bus' - or face exposure of his allegedly 'secret' love child while in office) by said Gaystapo, may be the biggest legal scam in modern hyrstory.

BTW - Erwin is a disgrace in his own right, and after years of his mealy whine voice delivering bogus Bar-Bri Con Law lectures - you would think someone might have clued him in that it was the Nazis who Destroyed the Boy Scouts because they were led by Homosex Ephebophile Pederasts like Ernst Rohm (who led the Homo-Nazi Storm Troopers opening Dachau in 1933) and his prostitute protege hitler.

But then few skulls are thicker than those of the pompous pedantic poseurs of the pathetic farce of Legal Academentia, where truly 'Tolerance Macht Frei'

By Mike McD on 2013 05 09, 3:21 am CDT

After # 229, and the past 100 or so posts, I better not get another e-mail from a moderator telling me my posts are off-topic. Time to kill this sucker.... Or are we going for a record?

By BMF on 2013 05 09, 5:39 am CDT

Comment removed by moderator.

By Tom Youngjohn on 2013 05 09, 6:39 pm CDT

Marriage is a religious based ceremony. Under strict separation, the State has no business fooling around with the concept, nor judging it. No exceptions are written. No exceptions envisioned.

Now if any two people want to enter into a civil union by contract, the State surely could oversee that arrangement and litigate it. Contract law precedes the formation and institution of government.

No matter what their decision, the no-so-supreme court will get it wrong.

The majority of current American law flies in the face of the plain words of the Constitution, the then contemporaneous standing of common law and accepted Christian beliefs of the founding rebels, all of which is subtly inculcated into the formation of the government and its basic laws. When poorly educated legislators seek to upset that balance, they and their ideas are entirely misplaced; hence are on unstable Constitutional ground. Therein lies the fundamental call of all of your evocations of loyalty to the Constitution and the rights that emanate from it. Where are your efforts being squandered?

There is too much smoke 'n' mirrors and guessing by the practitioners and the judiciary. Just because it is written and passed does not make it "good" law. Just because some black robe says, doesn't make him correct. Challenge everything offensive to the basic documents, including the governments.

Quit frittering on unimportant litigation and focus on the root of the all modern problems: government and its myriad of failed, unjust systems.

The amassing of fiat dollars may appear to be success, but holding the self-ordained royalty in D.C. to the fire is a much greater calling. Anyone can hold worthless US dollars ... even the proletariat.

By Blue & Gold on 2013 05 13, 2:13 pm CDT

Blue & Gold @232: Before you pontificate again about the religion clause of the First Amendment, educate yourself about its text and history. You might be shocked not to find the words separation of Church and State there, but language prohibiting a national Church and prtoecting the free exercise of religion. What you are invoking is Jefferson's langauge froma letter to a Connecticut Baptist congreagation assuring them about the freedom of religious minorities at a time that Connecticut had an established Church. That same Jefferson ordered the Marine Band to play at the Christian services then held at the Capitol building. How that language is used today is not consistent with what it meant back then and not consistent with the text of the First Amendment.

By Phil Byler on 2013 05 13, 2:23 pm CDT

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