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"It was the first election night I had a husband to kiss."
December 11, 2012 7:12 AM   Subscribe

The Gay Marriage Plot: On November 6, four states -- Maine, Washington, Maryland, and Minnesota -- took the side of gay marriage in ballot referenda. The improbable sweep for an issue that spent decades as an across-the-board political loser has already changed the landscape for gay rights in America -- and could provide a new framework for other causes.
posted by Rangeboy (140 comments total) 14 users marked this as a favorite

 
Winning this with the voting booth was always the right way.
posted by Chocolate Pickle at 7:28 AM on December 11, 2012 [2 favorites]


Basic Rights Oregon, the driving organization for marriage equality in that state, made the considered decision to NOT put this on the ballot here (there will likely be a marriage equality measure on the ballot in 2014).

Part of the thinking, as I heard it, and understand it, was that, with the closeness of the election, the dim hopes of an Obama re-election (18 months ago), BRO did not want to create a climate in which the evangelical right would have reason to show up at the ballot box (OK mail their ballots in) in droves.

Whether marriage equality would have actually passed here is an open question. As a state, we have become a tad more conservative than our neighbors to the north and the south.
posted by Danf at 7:49 AM on December 11, 2012


Winning this with the voting booth was always the right way.

I disagree with that. In some states that are deeply red, you are never going to convince enough people to win a vote on marriage equality. In some cases in some states, finding a judge who is going to play fair is easier than banking on public opinion.
posted by roomthreeseventeen at 7:52 AM on December 11, 2012 [13 favorites]


Winning this with the voting booth was always the right way.

Civil rights should never be subject to the whim of the voting public.
posted by los pantalones del muerte at 7:56 AM on December 11, 2012 [58 favorites]


Winning this with the voting booth was always the right way.

Just like Brown v. Board of Education or Loving v. Virginia?
posted by kmz at 7:56 AM on December 11, 2012 [18 favorites]


That we (the campaign volunteers, the campaign's message) were relentlessly nice and positive has to count for something here. I carry some bias, but the Yes on Prop 74 campaign here in WA was not only the most positive campaign I've ever been associated with, it's the most positive I've ever seen. We talked about the significance and the joy of marriage to every single voter we could, sharing our own stories along the way. There were some really courageous ads on TV and some really courageous LGBT folks at our phone banks. I'm really proud when I think about not only that we won, but how we won.
posted by Apropos of Something at 7:57 AM on December 11, 2012 [6 favorites]


The article made me cry at work. I just printed a copy for posterity.
posted by hellomina at 8:01 AM on December 11, 2012 [1 favorite]


Chocolate Pickle: "Winning this with the voting booth was always the right way."

Can we vote on your civil rights?
posted by octothorpe at 8:16 AM on December 11, 2012 [8 favorites]


Winning this with the voting booth was always the right way.

Putting civil rights up to mob vote is a bad idea, because popular attitudes can just as easily shift the other direction.

But, really, people will complain regardless of how rights are defended. When courts rule that discrimination is illegal, bigots will complain the judges are activists. When legislators write laws that underscore that discrimination is illegal, bigots will complain that the legislators are supporting special interests ("gay mafia", etc.). The important point seems to be the defense of those rights, and perhaps not so much the mechanism.
posted by Blazecock Pileon at 8:27 AM on December 11, 2012 [8 favorites]


Winning this with the voting booth was always the right way.
posted by Chocolate Pickle at 7:28 AM on December 11 [+] [!]


Agreed. I know there are the people that say 'you shouldn't get to vote on my civil rights,' etc., but that argument is unpersuasive to the unpersuaded both because it begs the question and because it's antidemocratic.

With the Supreme Court now looking at these issues, I'm glad they won in a few states and were close, but lost, in others. It takes homosexuals as a class out of the sort of "discrete and insular minority" category, where they'd be afforded special treatment in the federal courts if they could not effect political change themselves.

They are, by and large, going to win on this issue in the majority of states at the voting booth. Many, many heterosexuals have been convinced--think of no-fault divorce--that marriage is merely an expression of two people's feelings of commitment for the foreseeable future, and no different than any other sort of contract. Once that battle is won fully, gay marriage is always right around the corner.

I'm really proud when I think about not only that we won, but how we won.

You should be. That is how change is effected in a democracy. Hearts and minds, not bayonets.
posted by resurrexit at 8:33 AM on December 11, 2012


...and the occasional court case to remind everyone what their Constitution says...
posted by salishsea at 8:36 AM on December 11, 2012 [1 favorite]


You should be. That is how change is effected in a democracy. Hearts and minds, not bayonets.

How'd that slavery debate work out again?
posted by Talez at 8:36 AM on December 11, 2012 [7 favorites]


where they'd be afforded special treatment

Does "special treatment" mean "have their rights taken seriously"? Was it "special treatment" we got in Romer?
posted by rtha at 8:39 AM on December 11, 2012 [2 favorites]


that argument is unpersuasive to the unpersuaded

The point of inalienable Constitutional rights (such as equal protection under the law) is that you don't need to "persuade" people to recognize them; rather, they are granted to all, persuaded and unpersuaded alike, without being contingent on majority consent or the vagaries of public opinion.
posted by Blazecock Pileon at 8:48 AM on December 11, 2012 [3 favorites]


Whatever rights you win at the ballot box can be revoked at the ballot box.

I'm thrilled marriage equality had such a strong showing this year... Each and everyone of those states should now pass legislation, voted on by the actual law makers, that makes the revocation of those rights an arduous process and not just what 50.01% of the population feels like this year.
posted by edgeways at 9:10 AM on December 11, 2012 [1 favorite]


"Agreed. I know there are the people that say 'you shouldn't get to vote on my civil rights,' etc., but that argument is unpersuasive to the unpersuaded both because it begs the question and because it's antidemocratic. "

Not really and so what?

Taking the "anti-democratic" charge first, that's exactly why we have a representative republic and not a straight majoritarian direct democracy: because the majority can always be counted on to oppress the minority.

As far as begging the question, the assumption isn't directly that this is a civil right (though it is) but rather that the courts are the appropriate venue for deciding.

"With the Supreme Court now looking at these issues, I'm glad they won in a few states and were close, but lost, in others. It takes homosexuals as a class out of the sort of "discrete and insular minority" category, where they'd be afforded special treatment in the federal courts if they could not effect political change themselves. "

Mighty white of you to pronounce that LGBT folk shouldn't get special treatment just because the vast majority of states have patently discriminatory laws born out of irrational animus toward them. And it's not "special treatment," it's strict scrutiny.

"They are, by and large, going to win on this issue in the majority of states at the voting booth. Many, many heterosexuals have been convinced--think of no-fault divorce--that marriage is merely an expression of two people's feelings of commitment for the foreseeable future, and no different than any other sort of contract. Once that battle is won fully, gay marriage is always right around the corner. "

Good news everybody, since no-fault divorce became the norm 35 years ago or so, LGBT folk should be right around the corner. No use worrying about loving couples that will die together, get screwed on estates and insurance, and never see that promised land.

"You should be. That is how change is effected in a democracy. Hearts and minds, not bayonets."

You're right — the Gay March where they swarmed towns up and down the coast putting all the men to the sword shall never be repeated.

Sorry, this is such fatuous hand waving that I'm surprised you're not answering a question asked by David Gregory.
posted by klangklangston at 9:16 AM on December 11, 2012 [15 favorites]


Our founding fathers did not believe that rights were a democratic construction. They felt that they were inherent, and that the job of the government is to protect those rights.

Equality is not democratic. And our constitution and founding documents embedded into their very core the idea that these are essential human rights, rights that it is the job of the government to preserve and protect, regardless of the whims of tyrants or the electorate. Indeed, it is the case made by Jefferson in the Declaration of Independence -- that England has forfeited its privilege as a governing body by not respecting the inalienable rights that we are born possessing, and are not granted to us by government.

Our founders may not have started off this country perfectly, but the founders didn't necessarily believe in perfection. They did, however, believe in perfectibility -- that through a carefully framed democratic process that recognizes essential rights as being inalienable, we move toward a more perfect union. And so it has been -- over time, slaves were freed, women gained the vote, etc. Now we are moving toward perfecting our union even more, by recognizing the inalienable rights of another group that was historically, and wrongly, disenfranchised.

This isn't done by vote. If we do not recognize these rights, by Jefferson's argument, we forfeit the right to have this government. If we use the vote to vote against equality, that is not democracy, it is tyranny, and, because it has, in Jefferson's words, become destructive to these ends, it is the right of the people to abolish it.
posted by Bunny Ultramod at 9:16 AM on December 11, 2012 [8 favorites]


And this ballot bloviation is leaving aside the very real issue that many states amended their constitutions with thin majorities in order to make sure that when the public opinion shift came, it would be damned hard to reverse.
posted by klangklangston at 9:18 AM on December 11, 2012 [2 favorites]


How'd that slavery debate work out again?

Cute, but how are supporters of same-sex marriage not allowed to vote again? Because slaves couldn't vote. Change could be effected in no other way than war.
posted by resurrexit at 9:29 AM on December 11, 2012


And so it has been -- over time, slaves were freed, women gained the vote, etc. Now we are moving toward perfecting our union even more, by recognizing the inalienable rights of another group that was historically, and wrongly, disenfranchised.

Same thing here. Same-sex marriage supporters have never been historically disenfranchised. Their case is a decidedly different one than black males or white women not being able to vote. The point is that same-sex marriage supporters can vote, and do vote, and have voted to bring their view of the marriage institution to a state near you. They don't need any help from the courts.
posted by resurrexit at 9:34 AM on December 11, 2012


Civil rights should never be subject to the whim of the voting public.

In platonic ideal world, perhaps, but in the real world all civil rights are in fact subject to the whim of the body politic, which may be expressed/enforced in various ways. It's necessary to understand this particularly if you're trying to win rights that have not previously been recognized.

There's much to be learned from the Wolfson/FOM approach, here (like all that A/B message testing), but I think a good part of what has happened is also just the facts on the ground that gay marriage is already legal some places and people are starting to get used to the idea. Sky hasn't fallen, etc.

There is definitely, in my mind, a tipping point here in terms of public ... acceptance is too strong a word; acquiescence perhaps ... that gay marriage is inevitable and in the end not as horrific as imagined.

Same-sex marriage supporters have never been historically disenfranchised.

Your argument is made considerably more fuzzy by the use of the word "supporters". Slaves had abolitionist "supporters", women had male enfranchisement "supporters". In both cases it was essentially only the non-members of the category who had the political power to make the change.
posted by dhartung at 9:38 AM on December 11, 2012 [3 favorites]


They don't need any help from the courts.

They do if it is an issue of rights. That's embedded into the way America addresses the subject of rights, and it's the reason why, say, Loving v. Virginia was decided by the Supreme Court after blacks got the right to vote. Voting didn't eliminate anti-miscegenation laws nationwide -- judicial fiat did. But it did so because these laws violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. This was not a matter for the electorate -- we have a Supreme Court, in part, precisely to address when the vagaries of the voting public are in violation of essential human rights.

The only argument that supports putting gay marriage up to a vote is the argument that gay people, by virtue of being gay, are not entitled to equal protection under the law; that this is not an issue of rights, but of collectively, mutually agreed upon tolerance, which can be revoked any moment. And I have a feeling that this is precisely the question that is going to be addressed by the Supreme Court this year.
posted by Bunny Ultramod at 9:50 AM on December 11, 2012 [6 favorites]


"Same thing here. Same-sex marriage supporters have never been historically disenfranchised. Their case is a decidedly different one than black males or white women not being able to vote. The point is that same-sex marriage supporters can vote, and do vote, and have voted to bring their view of the marriage institution to a state near you. They don't need any help from the courts."

Being gay only was officially decriminalized in many states with the Lawrence v. Texas case just ten years ago. And by the time that Brown v. the Board of Ed or Loving v. Virginia was decided, African Americans had the right to vote for about 100 years.

As a broader lesson on rhetoric: This is why LGBT folks have dropped the "civil rights" framing. Because there's always someone who wants to quibble about how LGBT folks are different and lets that specious pedantry supersede all of the more important ways that LGBT folks are similar to other historically dispossessed folks who needed the intervention of the federal government to ensure their equitable treatment. Might LGBT folks be better compared to Jews than African Americans? Maybe, but it's a distraction. Ressurexit is trying to muddy the issue, for no currently discernable gain.

Finally, as to "help from the courts": The courts have an obligation to be the final review of laws in America, ensuring that all Americans are treated equally before the law. As LGBT people clearly are not treated equally, this is the proper role for the courts. It's tempting to engage in a fantasy where winning four states out of 50 is grounds to declare LGBT people fully protected, but that's an illusion of no profit to actual LGBT people living their lives.

Even if you think that you're supporting everyone's freedom to marry, by proffering blithe, muddled objections, you're more detriment than help.
posted by klangklangston at 9:51 AM on December 11, 2012 [2 favorites]


This is a very interesting article that draws a horrifying but obvious conclusion about the difference in outcomes between 2008 and 2012: Campaigns matter. Horrifying because as noted above, civil rights shouldn't really be subject to the opinion of voters. I'm reminded of the speech given by a North Carolina pastor when the same-sex marriage ban amendment was up for a vote.

Still, on a happier note, Sunday was the first day of same-sex marriages in Seattle. I got something in my eyes while I was looking at 60 Moments That Gave Me The Chills During Seattle's First Day Of Marriage Equality.
posted by ob1quixote at 9:53 AM on December 11, 2012


I should also point out that, yes, gays were historically disenfranchised from the vote, even though that's neither here nor there. Homosexual behavior was illegal in this country, to a greater or lesser extent, until the Supreme Court overturned all antisodomy laws in Lawrence v. Texas -- in 2003.

Until then, gay people ran the real risk of being prosecuted. Now, if that alone weren't enough to disenfranchise potential voters, there's also the fact that, in most places, felons cannot vote. So, yes, for much of America's history, the people most likely to vote for gay marriage were the very ones who risked persecution for pursuing that vote, which is the very definition of disenfranchisement.
posted by Bunny Ultramod at 10:01 AM on December 11, 2012 [1 favorite]


Queer Washingtonian here. I moved here (my GF moved me here, actually) after one too many firebombs strapped to my motorcycle during Oregon's 1992 No on 9 "No special rights for homosexuals" campaign. And I had moved to Oregon because is was more tolerable than my east coast corporate life. I've been involved with... QUILTBAG political matters since my teens.
What's important about the current round of slender victories are, indeed, the new tactics of polling and segmented messaging. After *decades* of attempting to fight gay-hating habits (customs) and feelings with education and political declarations, we have gone to the literal heart of the matter - how people vote based on experiences in their personal relational networks. And getting queer people and conversations about real queer people, not projected stereotypes of queer people, into everyday conversations of voters.
My personal experience on the marriage campaigns has been very reluctant participation. When discriminatory employment, housing, taxation, and unequal application of sexual behavior laws are still on the books, and bullying still prevalent; and while marriage is very much class-based, marriage was not my activist rallying cry. But I did keep the conversations going in my Jewish communities. I lived in one of Seattle's oldest Jewish neighborhoods, and it is not liberal on social issues because it is mostly Orthodox. While not the majority of Washington's small Jewish population, they are the most financially committed and organized sector, making up more than 50% of total organizational funding. If Orthodox rabbis support an issue, then the Jewish community as whole will. If they don't, even the director of the Anti-Defamation League can lose their job for being too liberal (yes, this really happened a few years ago - with another community-dependent job, he is now publicly silenced on social justice).
So my task for the last few years, although I am no longer head of the local lesbian and gay congregation, has been carefully introducing the idea that marriage equality is consonant with Orthodox Jewish social justice practice, while no rabbi or congregation will have to deal with queers except by their own standards. At the same time my own synagogue joyfully celebrated our first same-sex weddings (we'd had some other public-acknowledgement-of-relationship ceremonies over the last two decades). But as this was a hugely divisive matter, not the least because the rabbi is female (and so not recognized as a rabbi in Jewish Orthodoxy because of her gender) I couldn't bring it up as a talking point.
The tide for queer civil equality is not some inevitable result of democracy or American values. The social climate changed because QUILTBAG people and their allies have spent *my entire lifetime* (and before) consciously working for change; cause after cause, strategy after strategy, fundraiser after fundraiser, lost vote after lost vote, lost court case after lost court case, and yes, death after death from neglect, poverty, suicide, murder, HIV, breast cancer...
And we're not at civil equality yet. Marriage in 10 or so states plus DC leaves us... still to fight for marriage everywhere, AND fight for guarantees of the *same civil rights as everyone else*.
I should live so long.
posted by Dreidl at 10:08 AM on December 11, 2012 [5 favorites]


Winning this with the voting booth was always the right way.

Bullshit. Voting on civil rights for a group that is in the minority is like two wolves and a sheep voting on what's for lunch.

Or, as Madison wrote:
“It is of great importance in a republic not only to guard the society against the oppression of its rulers but to guard one part of the society against the injustice of the other part. If a majority be united by a common interest, the rights of the minority will be insecure.”
posted by dersins at 10:16 AM on December 11, 2012 [4 favorites]


Another thing about ballot initiatives - they are crazy expensive. Passing a marriage equality ballot initiative in every state would, very realistically, cost in the neighborhood of half a billion dollars. What's to stop someone like Sheldon Adelson or the Koch brothers from deciding to just bankroll the opposition and stop this movement in its tracks?

That issue aside, this is a great article, and really shows how important smart campaigning is. There's a temptation to portray gay rights as an inevitability, but social change is never inevitable. It takes good strategy and committed activists. I work in a different progressive issue area, but we've all been looking at these campaigns to see what we can learn from them.
posted by lunasol at 10:26 AM on December 11, 2012




So, something else: If you're in California and want to help with developing messaging as well as spreading the good word about LGBT folks to your friends, family and neighbors, a whole bunch of LGBT advocacy groups (including the one that pays me) Breakthrough Conversation trains you to talk about this in a research-based way, and then asks that you track your conversations. Feel free to contact me if you want more info; there are a bunch of orgs contributing to this research in a bunch of different modes. (Like, we do more work with using this on the public in mock campaign mode; API Equality does it in API communities on a face-to-face basis, etc.)
posted by klangklangston at 10:54 AM on December 11, 2012 [1 favorite]


They don't need any help from the courts.

Again: Brown v. Board of Education, Loving v. Virginia, Griswold v. Connecticut, Roe v. Wade, etc.

Hell, by your logic, why even have a Supreme Court at all?
posted by kmz at 10:59 AM on December 11, 2012 [5 favorites]


Hell, by your logic, why even have a Supreme Court at all?

Activist judges and their desire to abide by the "constitution". It's like we're a country that treasures equality under the law as some sort of cherished value.

A favourite for the first person who tells me how many layers of irony that was.
posted by Talez at 11:09 AM on December 11, 2012


Many, many heterosexuals have been convinced--think of no-fault divorce--that marriage is merely an expression of two people's feelings of commitment for the foreseeable future, and no different than any other sort of contract.

Civil marriage is much more than a memorialization of a couple's love and the formation of a contract between two people. Marriage bestows significant rights, responsibilities, protections and benefits individually and collectively for the couple (and, their children).

For example, there are "1,138 federal marital benefits and protections denied to same-sex couples as the result of marriage inequality."

Here's just a small subset of those benefits and protections:
Filing joint income tax returns with the IRS and state taxing authorities.

Creating a 'family partnership' under federal tax laws, which allows you to divide business income among family members.

Inheriting a share of your spouse's estate.

Receiving an exemption from both estate taxes and gift taxes for all property you give or leave to your spouse.

Creating life estate trusts that are restricted to married couples, including QTIP trusts, QDOT trusts, and marital deduction trusts.

Obtaining priority if a conservator needs to be appointed for your spouse -- that is, someone to make financial and/or medical decisions on your spouse’s behalf.

Receiving Social Security, Medicare, and disability benefits for spouses.

Receiving veterans' and military benefits for spouses, such as those for education, medical care, or special loans.

Receiving public assistance benefits.

Obtaining insurance benefits through a spouse's employer.

Taking family leave to care for your spouse during an illness.

Receiving wages, workers' compensation, and retirement plan benefits for a deceased spouse.

Taking bereavement leave if your spouse or one of your spouse’s close relatives dies.

Visiting your spouse in a hospital intensive care unit or during restricted visiting hours in other parts of a medical facility.

Making medical decisions for your spouse if he or she becomes incapacitated and unable to express wishes for treatment.

Consenting to after-death examinations and procedures.

Making burial or other final arrangements.

Filing for stepparent or joint adoption.

Applying for joint foster care rights.

Receiving equitable division of property if you divorce.

Receiving spousal or child support, child custody, and visitation if you divorce.

Living in neighborhoods zoned for 'families only.'

Automatically renewing leases signed by your spouse.

Receiving family rates for health, homeowners', auto, and other types of insurance.

Receiving tuition discounts and permission to use school facilities.

Other consumer discounts and incentives offered only to married couples or families.

Suing a third person for wrongful death of your spouse and loss of consortium (loss of intimacy).

Suing a third person for offenses that interfere with the success of your marriage, such as alienation of affection and criminal conversation (these laws are available in only a few states).

Claiming the marital communications privilege, which means a court can’t force you to disclose the contents of confidential communications between you and your spouse during your marriage.

Receiving crime victims' recovery benefits if your spouse is the victim of a crime.

Obtaining immigration and residency benefits for noncitizen spouse.
These aren't 'special' rights ... they are rights that should be due to ALL Americans ... and not just available to the majority, but to everyone!
posted by ericb at 11:14 AM on December 11, 2012 [9 favorites]


That was fascinating.

One thing I thought was really interesting was how they changed the framing from marriage as a right to marriage as part of love and commitment. As part of that, the buzzwords became marriage equality rather than same-sex marriage or gay marriage. I noticed that I'd started using marriage equality when I was talking about this instead of gay marriage probably just in the last six months or so, without knowing why but feeling like it was a better, more persuasive phrase. It's fascinating to realize that I was subtly influenced by this compaign without knowing it.
posted by raeka at 12:06 PM on December 11, 2012 [1 favorite]


Back to my hearts and minds comment from above, here's an article discussing how legislative recognition of marriage may be a better vehicle than judicial rulings for balancing religious liberty and gay rights.

As the article discusses, it's not just a matter of saying, 'Oh, your church buildings or priests won't have to marry gay folks, so what are you worried about?' As ericb notes above, many things come along with state recognition of the private marriage contract.

When there's a conflict between the First Amendment right to religious liberty and the new-found right to marry a same sex person of one's choice and to have that marriage recognized by the state, where does the fist end and the nose begin?

And if, rather than try to work toward resolving the problems created by recognizing your new rights, your response is to tell opponents to go jump in a lake, your rights aren't up for discussion--don't be offended when they tell you to do likewise.
posted by resurrexit at 12:09 PM on December 11, 2012


As part of that, the buzzwords became marriage equality rather than same-sex marriage or gay marriage. I noticed that I'd started using marriage equality when I was talking about this instead of gay marriage probably just in the last six months or so, without knowing why but feeling like it was a better, more persuasive phrase. It's fascinating to realize that I was subtly influenced by this compaign without knowing it.

"Freedom to marry" tests better among the moveable middle.

posted by klangklangston at 12:13 PM on December 11, 2012


Asking the courts to do what they're supposed to do (e.g. in same-sex marriage cases, whether or not existing state or federal rights are being violated or not applied to all people as they should be) is not telling opponents to jump in a lake. Jesus.
posted by rtha at 12:26 PM on December 11, 2012 [2 favorites]


When there's a conflict between the First Amendment right to religious liberty and the new-found right to marry a same sex person of one's choice and to have that marriage recognized by the state, where does the fist end and the nose begin?

Where's there any conflict?

No religious institutions are being forced to officiate same-sex weddings. The issue is moot. Separation of church and state at its purest!

All that LGBT folks are looking for is the opportunity to enter into a civil marriage and receive the same recognition and benefits from their state and federal governments.
posted by ericb at 12:32 PM on December 11, 2012 [1 favorite]


"As the article discusses, it's not just a matter of saying, 'Oh, your church buildings or priests won't have to marry gay folks, so what are you worried about?' As ericb notes above, many things come along with state recognition of the private marriage contract.

When there's a conflict between the First Amendment right to religious liberty and the new-found right to marry a same sex person of one's choice and to have that marriage recognized by the state, where does the fist end and the nose begin?
"

Well, frankly, it's LGBT people whose nose it is, as they're the ones being denied equal treatment under the law. And generally, the day-to-day staff of social service organizations with a religious base support equality (based on general laity surveys), but it's the upper echelons that maintain discriminatory dogma.

But really, this all seems like concern trolling, so let me ask some questions: Do you support the freedom to marry for LGBT people? Do you support state money going to religious institutions that discriminate against LGBT people? Does that reflect your values?

I'll add as an aside that I see an awful lot of people who aren't affected by these sorts of things off-handedly complaining about the process in a way that promotes dawdling while people — real people — are still working for their equality. It's a very privileged stance, and if you don't feel a real stake in the issue one way or another, then at worst you should be getting out of the way. (And probably re-reading Letter from a Birmingham Jail.)
posted by klangklangston at 12:33 PM on December 11, 2012


And if, rather than try to work toward resolving the problems created by recognizing your new rights, your response is to tell opponents to go jump in a lake ...

WTF?
posted by ericb at 12:33 PM on December 11, 2012


"No religious institutions are being forced to officiate same-sex weddings. The issue is moot. Separation of church and state at its purest!

All LGBT folks are looking for is the opportunity to enter into a marriage and receive the same recognition and benefits from their state and federal governments.
"

The argument from the theocrats is that as marriage comes with rights and recognitions, it would be illegal to continue discriminating against LGBT people, if LGBT people could have legal marriages, in areas like adoptions and social services which many religious see as part of their mission.

(But it's similar to the nonsense over contraception, where churches cast secular policy as infringing on their rights rather than recognizing that it's a diminishment of their privileges with the benefit of making America a place that's more just and more equal, and ultimately a place where one religion can't dictate the practice of others, e.g. that the Episcopals would largely recognize marriage between same-sex couples.)
posted by klangklangston at 12:36 PM on December 11, 2012


Cute, but how are supporters of same-sex marriage not allowed to vote again? Because slaves couldn't vote.

People of all races could vote in 1966, but it took a court ruling in 1967 to make it possible for couples of different races to legally marry everywhere in the US.

It didn't take a war for the Lovings' marriage to be recognized in every state but the fact that it took a Supreme Court ruling for them to be able to enjoy their full rights as US citizens speaks volumes about the hearts and minds of their fellow citizens--and the undeniable willingness of their fellows to relegate the Lovings to the status of second class citizens.

The parallels to the state of marriage equality in the US today should be clear.
posted by skye.dancer at 12:39 PM on December 11, 2012 [1 favorite]


rather than try to work toward resolving the problems created by recognizing your new rights

That's the problem, right there. These aren't "new" rights. These are rights we always had, but which needed defending in one arena or another, whether judicially, legislatively, or at the ballot box (as dangerous as the latter option might be). That's why these rights are called inalienable.
posted by Blazecock Pileon at 12:55 PM on December 11, 2012 [3 favorites]


Great article; this is one tidbit I particularly liked:

"The traditional-marriage campaigners aired nearly identical ads in all four states, in a couple of cases even labeling the state incorrectly when they posted the ad online."

> And if, rather than try to work toward resolving the problems created by recognizing your new rights, your response is to tell opponents to go jump in a lake, your rights aren't up for discussion--don't be offended when they tell you to do likewise.

This is bullshit. Allowing gay people to marry isn't creating some sort of "new right," it's recognizing that they are human beings with the rights other human beings have.
posted by languagehat at 12:59 PM on December 11, 2012


The argument from the theocrats is that as marriage comes with rights and recognitions, it would be illegal to continue discriminating against LGBT people, if LGBT people could have legal marriages, in areas like adoptions and social services which many religious see as part of their mission.

Ah, memories of Catholic Charities here in Massachusetts.

Reality Check: The Big Lie About Catholic Charities, Adoption and Marriage Equality
.... Catholic Charities of Boston was not forced out of the adoption business because of marriage equality in Massachusetts. The organization voluntarily ceased doing adoptions after the state’s four Catholic Bishops got wind that gay parents had been adopting kids through Catholic Charities from an October 2005 Boston Globe story [PDF]. Not surprisingly, all of this happened as the Massachusetts Legislature was wrestling with whether to put an anti-gay marriage amendment on the statewide ballot, which the local Catholic hierarchy supported wholeheartedly.

The Globe reported that over the course of about two decades, Catholic Charities placed 13 children with gay parents, out of about 720 adoptions they facilitated during those years. For the record, those 13 children were considered hard to place with adoptive parents because they were older or had physical or emotional difficulties, meaning had they not found loving parents who happened to be gay, they’d likely not have parents. Catholic Charities was accepting state funds to provide adoption services and was thus bound by the state’s gay-inclusive anti-discrimination law not to reject qualified adoptive parents based on sexual orientation. Oh, and by the way, the non-discrimination law has been on the books since 1989—long before marriage equality was but a doodle on Mary Bonauto’s legal pad.

The Globe also reported that though Catholic Charities President Bryan Hehir didn’t love the idea of placing children with same-sex couples, he saw it as “a legal accommodation in the name of a greater social good.” The story later states that, “Hehir said that to his knowledge, his agency has never sought an exemption from the nondiscrimination language.”

At least not until the four bishops, led by Cardinal Sean O’Malley of Boston, decided that Catholic Charities should be exempt from the state’s non-discrimination law, a move that was detailed in a March 11, 2006 Globe article [PDF] about Catholic Charities decision to stop doing adoptions. When that proved to be a non-starter on Beacon Hill, the bishops simply elected to shut down Catholic Charities of Boston’s adoption services – despite a unanimous vote by the agency’s 42-member board to continue facilitating adoptions by gay people. As the Globe reported on March 11, Hehir and Catholic Charities board president Jeffrey Kaneb said the decision stemmed from their inability “to reconcile church teaching that placement of children in gay homes is “immoral” with Massachusetts law prohibiting discrimination against gays.” No mention of marriage equality as the reason for the policy change. In fact, nowhere in the entirety of the joint statement [PDF] they released at the time do Hehir and Kaneb say same-sex marriage played a role in the decision to terminate adoption services. Because it didn’t.

In reality, it was just garden variety anti-gay bigotry on the part of four Catholic bishops that killed Catholic Charities of Boston adoption services. Who knew?
posted by ericb at 1:14 PM on December 11, 2012 [4 favorites]


...despite a unanimous vote by the agency’s 42-member board to continue facilitating adoptions by gay people.

And Catholic Charities lost some very influential people from their board, as a result of their standing firm on getting out of the adoption business.
"Seven board members of Catholic Charities of Boston have resigned, saying Massachusetts bishops' effort to prohibit homosexuals from adopting children from Catholic social service agencies threatens the essence of the organization's Christian mission, the Boston Globe reports."
posted by ericb at 1:18 PM on December 11, 2012


Many, many heterosexuals have been convinced--think of no-fault divorce--that marriage is merely an expression of two people's feelings of commitment for the foreseeable future, and no different than any other sort of contract.

Actually, I came to that conclusion all by myself...it's pretty evident once you wipe away all the religious objections surrounding the issue.
posted by malocchio at 1:22 PM on December 11, 2012


churches cast secular policy as infringing on their rights rather than recognizing that it's a diminishment of their privileges

That's an awfully partisan way to frame the issue (especially how it reverses the roles from one group being merely tolerated by the state while the other group has affirmative rights that the state can compel others to respect), but it wrongly ignores the First Amendment's Free Exercise clause.

As to the "new rights" aspect of this, there aren't many natural law MeFites, so I assume we're talking about "rights" in the positivist sense of a private action that is recognized by a governmental entity. If a right has not been recognized by our government before--and it hadn't in the USA before the last couple of decades--then it's very much new.

And if it's new, and if it interferes with previously-recognized rights--such as the Free Exercise clause of the First Amendment--why aren't same-sex marriage proponents the fist and the holders of the previously-recognized rights not the face?
posted by resurrexit at 1:22 PM on December 11, 2012


And if it's new, and if it interferes with previously-recognized rights--such as the Free Exercise clause of the First Amendment--why aren't same-sex marriage proponents the fist and the holders of the previously-recognized rights not the face?

I want concrete examples, not handwavey stuff: What First Amendment Free Exercise Clause rights would be abridged by marriage equality?

It didn't take a war for the Lovings' marriage to be recognized in every state but the fact that it took a Supreme Court ruling for them to be able to enjoy their full rights as US citizens speaks volumes about the hearts and minds of their fellow citizens--and the undeniable willingness of their fellows to relegate the Lovings to the status of second class citizens.

Not only that, anti-interracial marriage laws were still technically on the books in several Southern states until at least a few years ago. If we waited on legislative action, who knows when interracial marriage would have actually become legal across the US.
posted by kmz at 1:28 PM on December 11, 2012 [3 favorites]


I want concrete examples, not handwavey stuff: What First Amendment Free Exercise Clause rights would be abridged by marriage equality?

Let me also ask:
I want concrete examples, not handwavey stuff: What First Amendment Free Exercise Clause rights HAVE BEEN abridged by marriage equality IN THOSE STATES WHERE SAME-SEX MARRIAGE IS/HAS BEEN LEGAL SINCE THE FIRST CIVIL MARRIAGES IN THE U.S. WERE PERFORMED IN MASSACHUSETTS ON MAY 17, 2004?
Please cite specific examples.
posted by ericb at 1:38 PM on December 11, 2012 [2 favorites]


As to the "new rights" aspect of this, there aren't many natural law MeFites, so I assume we're talking about "rights" in the positivist sense of a private action that is recognized by a governmental entity. If a right has not been recognized by our government before--and it hadn't in the USA before the last couple of decades--then it's very much new.

The Equal Protection Clause of the Fourteenth Amendment is not a new right. The Supreme Court is not going to decide this based on making up new rights for gay people. It is going to decide this based on whether or not gay people have been denied rights that others already have.
posted by Bunny Ultramod at 1:51 PM on December 11, 2012


HAVE BEEN abridged

Other than the Massachusetts deal you've already referenced, here's an Illinois story.
...Anthony R. Picarello Jr., general counsel and associate general secretary of the United States Conference of Catholic Bishops, disagreed. “It’s true that the church doesn’t have a First Amendment right to have a government contract,” he said, “but it does have a First Amendment right not to be excluded from a contract based on its religious beliefs.”
Or were you hoping to argue that people who retreat rather than be defeated by the state aren't having their rights infringed? If so, every same-sex couple who wants to get married but isn't actively litigating their denial of a marriage license hasn't been denied any rights at all.

Not everyone's cut out for martyrdom.
posted by resurrexit at 1:55 PM on December 11, 2012


How would John Roberts rule on gay marriage cases?

Richard Socarides | The New Yorker:
"If he rules against gay rights now, how is Roberts going to feel about the overturning of this precedent later—or having it overturned while he is still on the Court as Chief? That’s not to say public opinion is the only factor here. But the Supreme Court has previously held that marriage is a fundamental right, and sexual orientation, especially when viewed from today’s perspective, meets all the requirements for heightened constitutional scrutiny."
posted by ericb at 1:55 PM on December 11, 2012




It is going to decide this based on whether or not gay people have been denied rights that others already have.

But the right that others already have is not just broadly "the right to marry"--rather, it's the right to marry one sufficiently unrelated person of the opposite sex who has reached a certain age. Gay people have that right, too, and, if the Fourteenth Amendment has anything to say to this issue, states can't deny them that right.

No one, not until long after the Fourteenth Amendment was passed, has even had the right to marry someone of the same sex. That right has a completely different object. If it's a right at all, it's a new right.
posted by resurrexit at 2:04 PM on December 11, 2012


If a right has not been recognized by our government before--and it hadn't in the USA before the last couple of decades--then it's very much new.

Some state laws did not recognize or permit interracial marriages. When Loving was decided, was it a new right? As far as I know, prior to Loving, there was no official federal recognition of an explicit right of people of different races to marry each other. So I guess it was new? And wrong, you seem to say, for it to be decided by the courts rather than the voters.

Gay people have that right, too, and, if the Fourteenth Amendment has anything to say to this issue, states can't deny them that right.

In Virginia and other states, black people could not marry white people though the general right to marry was not prohibited. Again, SCOTUS, Loving, etc. Please explain how that is different.
posted by rtha at 2:06 PM on December 11, 2012 [1 favorite]


But the right that others already have is not just broadly "the right to marry"--rather, it's the right to marry one sufficiently unrelated person of the opposite sex who has reached a certain age.

This is very similar to the argument that prior to Loving v. Virginia, black people had the same marriage rights as white people, because they both had the right to marry people of their same race.

The Supreme Court did not see it that way.
posted by Bunny Ultramod at 2:07 PM on December 11, 2012 [2 favorites]


Other than the Massachusetts deal you've already referenced, here's an Illinois story.

From that article:
The Illinois experience indicates that the bishops face formidable opponents who also claim to have justice and the Constitution on their side. They include not only gay rights advocates, but also many religious believers and churches that support gay equality (some Catholic legislators among them). They frame the issue as a matter of civil rights, saying that Catholic Charities was using taxpayer money to discriminate against same-sex couples.

... Taking a completely different tack [than Catholic Charities] was the agency affiliated with the conservative Lutheran Church Missouri Synod, which, like the Catholic Church, does not sanction same-sex relationships. Gene Svebakken, president and chief executive of the agency, Lutheran Child and Family Services of Illinois, visited all seven pastoral conferences in his state and explained that the best option was to compromise and continue caring for the children.

“We’ve been around 140 years, and if we didn’t follow the law we’d go out of business,” Mr. Svebakken said. “We believe it’s God-pleasing to serve these kids, and we know we do a good job.”

... In August, Judge John Schmidt, a circuit judge in Sangamon County, ruled against Catholic Charities, saying, “No citizen has a recognized legal right to a contract with the government.” He did not address the religious liberty claims, ruling only that the state did not violate the church’s property rights.
If you are an institution -- religious, or not, which can not abide by anti-discrimination laws set forth by your city, state, you have no standing, or right to funds and to continuing to discriminate. Tough luck. Abide by the law, or get out of the adoption business.
posted by ericb at 2:10 PM on December 11, 2012


There is no "new right" here. There is only marriage, and the removal of restrictions that have prevented us from exercising that right. When the voting age was set to 18 nationwide by the 26th Amendment, that didn't create a new "right of 18-20 year olds to vote." I don't see how expanding the pool of relationships eligible for marriage is any different from expanding the pool of citizens eligible to vote.
posted by expialidocious at 2:30 PM on December 11, 2012


Gay people have that right, too

Hoooooooooly shit, the old "gay people have the right to marry somebody of the opposite sex, just like straight people!" bullshit. I'm done here.
posted by kmz at 2:35 PM on December 11, 2012 [3 favorites]


During an appearance at Princeton University, Scalia commented about his past legal writings that made a comparison between the right to ban sodomy with the right to ban murder and bestiality.

"It's a form of argument that I thought you would have known, which is called the 'reduction to the absurd,' " Scalia said. "If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?"


Yeah, Tony. That's the only reason murder is illegal: because we think it's icky.

People (even people who disagree with him) say he's really quite smart. Does he save all that smartness for his legal writings, and lets the dumb out for his public speaking?
posted by rtha at 2:48 PM on December 11, 2012


Gay people have that right, too

Tsk, tsk. Next time, don't be so overt.
posted by Blazecock Pileon at 3:02 PM on December 11, 2012


I'm curious how much the new strategies really made a difference. There's been a steady gain in polls for gay marriage for twenty years now, and that may have made the difference. Maybe someone could figure out whether the four states really outperformed the trends, especially compared to NC where the new techniques weren't in place? Nate Silver, get analyzing!
posted by vasi at 4:10 PM on December 11, 2012


"That's an awfully partisan way to frame the issue (especially how it reverses the roles from one group being merely tolerated by the state while the other group has affirmative rights that the state can compel others to respect), but it wrongly ignores the First Amendment's Free Exercise clause."

Well, no, it's not. And no, it doesn't. It only ignores "free exercise" if you ignore the establishment clause, and establishment comes first.

As to the "new rights" aspect of this, there aren't many natural law MeFites, so I assume we're talking about "rights" in the positivist sense of a private action that is recognized by a governmental entity. If a right has not been recognized by our government before--and it hadn't in the USA before the last couple of decades--then it's very much new. "

That's a misapplication of semantics that ignores the formulation of rights used in the Constitution.

And if it's new, and if it interferes with previously-recognized rights--such as the Free Exercise clause of the First Amendment--why aren't same-sex marriage proponents the fist and the holders of the previously-recognized rights not the face?"

Um, because your premises are flawed? It's not new, the previous privileges were an unconstitutional establishment of religion (or endorsement, to use more contemporary language), and there's no real harm to the people who can no longer discriminate whereas there's real harm to those discriminated against.

The pain of abandoning a prejudice is brief and easily healed; the pain of a continued prejudice festers and sickens us all.

(Also: Waiting on some answers to some questions that I asked upthread.)
posted by klangklangston at 5:08 PM on December 11, 2012 [1 favorite]


"Other than the Massachusetts deal you've already referenced, here's an Illinois story.
...Anthony R. Picarello Jr., general counsel and associate general secretary of the United States Conference of Catholic Bishops, disagreed. “It’s true that the church doesn’t have a First Amendment right to have a government contract,” he said, “but it does have a First Amendment right not to be excluded from a contract based on its religious beliefs.”


Picarello's full of bullshit on that one — while religious institutions have wide latitude in conducting their own affairs, they do not have a positive right to public money, and public money can legitimately be awarded based on the ability to fulfill a contract. If a religion doesn't believe in, say, housing African American homeless people, it's legitimate to deny them a contract to provide public housing, no matter how sincerely religious their racism is.

Or were you hoping to argue that people who retreat rather than be defeated by the state aren't having their rights infringed? If so, every same-sex couple who wants to get married but isn't actively litigating their denial of a marriage license hasn't been denied any rights at all.

Not everyone's cut out for martyrdom.
"

What kind of nonsense is this?

"But the right that others already have is not just broadly "the right to marry"--rather, it's the right to marry one sufficiently unrelated person of the opposite sex who has reached a certain age. Gay people have that right, too, and, if the Fourteenth Amendment has anything to say to this issue, states can't deny them that right. "

No, the right is the right to marry. The state may put limitations upon that right in order to serve the public interest, but those restrictions must be directly related to a legitimate public policy objective that would be unachievable otherwise.

No one, not until long after the Fourteenth Amendment was passed, has even had the right to marry someone of the same sex. That right has a completely different object. If it's a right at all, it's a new right."

Textualism is idiotic both in the law and in the Bible. The right of LGBT people to marry the person that they love does not have a different object than the right of anyone else to marry the person that they love: A public commitment to a stable relationship and a recognition of such.

This is only a new right in the way that the right to publish political speech on a blog is a new right: In the most fatuous and sophistic manner possible.

And, just in case you missed it prior, please answer my questions.
posted by klangklangston at 5:17 PM on December 11, 2012


As to rtha and Bunny Ultramod's references to Loving, that argument was flawed in that context because it was based on the race of both the subject and object of the marriage right. That is a constitutionally impermissible (i.e., can't pass strict scrutiny) classification. And, no, the right wasn't new except perhaps in Virginia in the most positivistic sense--states with anti-miscegenation laws were brought back into line with the traditional concept of marriage in which one man and woman of a sufficient age and non-affinity could marry. Racist laws were aberrations on the traditional concept of marriage.

But the argument is different, and valid, in this context because sexual orientation isn't a suspect class, so limiting the object of the marriage right to include only a person of the opposite sex is constitutionally permissible so long as there is a rational basis. And if there is a rational basis for changing the object of the marriage right to permit marrying someone of the same sex, there is no rational basis for not also changing the object of the marriage right to extend that right to polygamists or to first cousins or to college roommates or to best friends or to a blind man and his guide dog.

If the justification is merely klangklangston's "public commitment to a stable relationship"--even if you try to tack on other modifiers or, as you say, "limitations upon [the right to marry] in order to serve the public interest" to exclude those hypotheticals and include only same-sex marriages--all of those would meet the criteria.

Luckily we have nine lawyers who can tell us whether our state lawmakers are rational or not.

klangklangston, sorry, not ignoring you, I was done for the day--but I honestly don't see any more questions I haven't answered.

It's not new, the previous privileges were an unconstitutional establishment of religion (or endorsement, to use more contemporary language)

But has a court--has The Court?--held that participation in public social service contracts by charities with a religious mission is an Establishment Clause violation? I'm honestly asking; I don't think so, but I don't know either. If it hasn't been so held--and in light of the decades-long existence of such contractual relationships and the text of the Free Exercise Clause--the newly-created right must respect or accommodate the prior existing right.
posted by resurrexit at 8:06 AM on December 12, 2012


so limiting the object of the marriage right to include only a person of the opposite sex is constitutionally permissible so long as there is a rational basis

Well, that's the question, isn't it? Is there a rational basis? The pro-Prop 8 people couldn't come up with one. Bet you can't, either.

And if there is a rational basis for changing the object of the marriage right to permit marrying someone of the same sex, there is no rational basis for not also changing the object of the marriage right to extend that right to polygamists or to first cousins or to college roommates or to best friends or to a blind man and his guide dog

That's quite a leap. Well, to the marrying-your-dog conclusion, which is such a bullshit homophobic dogwhistle that I laughed. It doesn't surprise me that you'd use it, though, given your earlier "special rights" nonsense.

First-cousin marriage is legal in some states. And why not college roommates?
posted by rtha at 8:57 AM on December 12, 2012


The questions: "But really, this all seems like concern trolling, so let me ask some questions: Do you support the freedom to marry for LGBT people? Do you support state money going to religious institutions that discriminate against LGBT people? Does that reflect your values? "
posted by klangklangston at 9:03 AM on December 12, 2012


And if there is a rational basis for changing the object of the marriage right to permit marrying someone of the same sex, there is no rational basis for not also changing the object of the marriage right to extend that right to polygamists or to first cousins or to college roommates or to best friends or to a blind man and his guide dog.

Yeah... you know this automatically loses you the argument right here? That is truly such a fucking stupid thing to say it undermines everything you say on the matter previously and henceforth.
posted by edgeways at 9:07 AM on December 12, 2012 [2 favorites]


"As to rtha and Bunny Ultramod's references to Loving, that argument was flawed in that context because it was based on the race of both the subject and object of the marriage right. That is a constitutionally impermissible (i.e., can't pass strict scrutiny) classification. And, no, the right wasn't new except perhaps in Virginia in the most positivistic sense--states with anti-miscegenation laws were brought back into line with the traditional concept of marriage in which one man and woman of a sufficient age and non-affinity could marry. Racist laws were aberrations on the traditional concept of marriage. "

That's begging the question something fierce, and moving the goalposts along with it. It was a new right in the same positivistic sense you've decried above, and the distinction between Loving and current marriage cases for same-sex couples is the gender of their subject and object, as race was prior. As discrimination based on gender is also due strict scrutiny, these should not pass muster.

Further, racist laws were not aberrations in the traditional concept of marriage — racial marriage laws existed pretty much everywhere there were traditional marriage laws. I do wish that so called defenders of marriage wouldn't just trot out bullshit and count on everyone being as ignorant about the anthropological history of marriage as they are.

"But the argument is different, and valid, in this context because sexual orientation isn't a suspect class, so limiting the object of the marriage right to include only a person of the opposite sex is constitutionally permissible so long as there is a rational basis. And if there is a rational basis for changing the object of the marriage right to permit marrying someone of the same sex, there is no rational basis for not also changing the object of the marriage right to extend that right to polygamists or to first cousins or to college roommates or to best friends or to a blind man and his guide dog. "

Gender is a suspect class, sexual orientation — meeting the same historical animus tests that race does — should be, and goddamn if I'm not sick of the moronic comparisons between LGBT people and dogs. I mean, you get that implies you don't think they're human, right? You understand how shitty a view that is to tell someone who's LGBT: "I think you should have the same rights as a dog."

Not only that, but your argument is idiotic upon even a moment's reflection: The rational objections to marrying animals or minors or any of the other idiotic comparisons slathered in Santorum are not predicated upon LGBT people not being able to marry.

So, yay, stupid and offensive!
posted by klangklangston at 9:10 AM on December 12, 2012 [2 favorites]


states with anti-miscegenation laws were brought back into line with the traditional concept of marriage in which one man and woman of a sufficient age and non-affinity could marry. Racist laws were aberrations on the traditional concept of marriage.

The keyword you're not looking up is endogamy, which is common. While not always enforced by formal law, many cultures' or societies' traditional concept of marriage is as something one does not do with outsiders. Likewise, many societies have held that marriage should not take place across class or nobility lines, or caste lines, or between members of different religions.

Further, miscegenation laws in what is now the US comfortably predate the US; Virginia seems to have banned it in 1691 and this ban was in force until 1967. So this claim doesn't make sense unless you want to assert that the US has never held to the traditional understanding of marriage. Which would mean that what we can observe to be the traditions of the US weren't traditional.

If you want to assert that the traditional understanding of marriage was that any man and woman who were of age and not barred by affinity could marry, show me. Show me the societies where there weren't legal restrictions preventing nobles from marrying commoners, where there weren't restrictions forbidding Christians from marrying Jews, where there were racial minorities and no restrictions against marrying them, and show me that these societies constitute some sort of historical majority of something.
posted by ROU_Xenophobe at 9:23 AM on December 12, 2012 [3 favorites]


if there is a rational basis for changing the object of the marriage right to permit marrying someone of the same sex, there is no rational basis for not also changing the object of the marriage right to extend that right to polygamists

Except that polygamy as practiced in the real world is a part of a larger system for the oppression of women, which the state might rightfully want to prohibit or limit. Likewise, limiting legal marriage to pairs inherently limits the incentives for fraudulent or sham marriages intended only to extract benefits without intrusive state inquiry into the validity of the marriage.

or to first cousins

This is already the law in some of the US, and it's not the gays' fault.

or to college roommates

I am unaware of any jurisdiction that prohibits people from marrying if they are or were college roommates.

or to best friends

Likewise, I am unaware of any jurisdiction that imposes an upper limit on the friendship of couples who seek to marry. What a strange concept to assert.

or to a blind man and his guide dog

Ooh, that's it, you got me! Same sex marriage is exactly the same as bestiality! Except that gays are humans and dogs aren't.
posted by ROU_Xenophobe at 9:34 AM on December 12, 2012 [2 favorites]


Yes, a person can't marry a person of the same sex; a person can't marry a dog; therefore, gay people must be dogs. :/

If that's the conclusion you draw, you're not participating in good faith. I should have known people would draw an irrational conclusion in hopes of capitalizing on it as a chance to tune out and ignore what I say; so I shouldn't have included it, it allowed some of you to derail the discussion. I apologize.

My point with the hypotheticals was that we have purportedly rational bases for any number of restrictions states place on the marriage right. If states are forced to redefine the marriage right in the manner in which same-sex marriage advocates have put before the federal courts, then the rational bases for many other restrictions on marriage--which of course are different owing to the different manner in which they would change either the object or subject of the marriage right and, thus, of course "are not predicated upon LGBT people not being able to marry"--are no longer rational.

And I didn't say anything about marrying minors.
posted by resurrexit at 10:27 AM on December 12, 2012


And klangklangston, the answers to those questions aren't relevant to our discussion. It should suffice for you that I am interested in the outcome of this argument and am determined to participate in it in defense of my positions.
posted by resurrexit at 10:29 AM on December 12, 2012


Yes, a person can't marry a person of the same sex; a person can't marry a dog; therefore, gay people must be dogs. :/

If that's the conclusion you draw, you're not participating in good faith.


You present a nonsensical "argument" that does, in fact, compare people to dogs, and you accuse us of not arguing in good faith? Are you serious?

You ignore refutations of your other assertions - college roommates, first cousins, etc. - and again, we're the ones arguing in bad faith?

Present a rationale - a non-religious one - for why only opposite-sex couples should be allowed to marry.
posted by rtha at 10:45 AM on December 12, 2012


If that's the conclusion you draw, you're not participating in good faith.

And arguing that same sex marriage means there can't be any rational reason to prohibit marriages between humans and brute animals is arguing in good faith. o_0
posted by ROU_Xenophobe at 10:46 AM on December 12, 2012


Pages 1 and 2 are the summary of the argument, but this whole brief's worth reading. It is an intentionally secular, reasoned defense of marriage. You might disagree with it, but there it is.
posted by resurrexit at 11:09 AM on December 12, 2012


NYC Council Speaker Christine Quinn on Scalia: 'Don't Compare Me to a Murderer Because I'm a Lesbian' - VIDEO
"The Justice should apologize...It's offensive. Sexual orientation is who we are as people. It's how we're created if we're LGBT. And to compare that even in a way you want to say was some philosophical exercise to a heinous horrible crime of murder. It's just wrong. He can say it's a slip of the tongue. Just apologize. But don't compare me to a murderer because I'm a lesbian. Just don't do it. It's wrong."

Added Quinn: “My father always said, 'It’s nice to be nice.' And it is. And you should treat other human beings even if you disagree with them, even if you dislike who they are, in a respectful way. The justice was disrespectful to me and my family. And that doesn't further my understanding him better, or him understanding me better."
posted by ericb at 11:10 AM on December 12, 2012




I ahve a mixed relationship to the tactics described in this article: on the one hand, this works and that's a great thing. I can't argue with the results or the legwork done to determine what actually works and what doesn't.

On the other, when I get married, it'll be for all the over-intellectualized reasons that the earlier, not-working campaigns convinced people same-sex marriage was about. I don't need a marriage to make a loving commitment to my partner, I can do that just fine on my own, thanks. I do need a marriage for the long lists of rights, previously mentioned, available only in a marriage which cannot be contracted for separately.

As for the above slippery slope - I'm all for sliding down it, more or less. Multi-party marriages are a complicated subject that is much discussed in poly communities. Some people really want it, others aren't so sure in the face of the difficulties it faces from a "how does this even work" point of view - providing a legal framework for the generic multi-party case is a complicated thing. Not as bad if you're only thinking about traditional polygyny, which is uniform enough to be easily incorporated, at least conceptually.

For the generic case, the most workable solution is convergent with what I've seen from queer radicals operating from an anti-marriage standpoint: the solution to the problem is that we need to end the legal and civil category of 'marriage' and replace it with the ability to separately contract for the various rights currently available only under the current legal construct of civil marriage. Once you have that, the other items (not including the 'marry your dog' case) fall in place - everybody can tailor their legal relationship to each other as fits their own situation, regardless of how much it resembles the current legal grouping of marriage.

That's an even harder sell than just expanding the marriage license to same-sex couples.
posted by vibratory manner of working at 11:19 AM on December 12, 2012


Pages 1 and 2 are the summary of the argument, but this whole brief's worth reading. It is an intentionally secular, reasoned defense of marriage. You might disagree with it, but there it is.

Hollingsworth v. Perry, formerly Perry v. Schwarzenegger then Perry v. Brown was found to be unconstitutional by a California District Court, as well as a the 9th. Circuit Court of Appeals which also rejected the "intentionally secular, reasoned defense of marriage" made. The argument failed, miserably!

In the district court presiding Judge Vaughn Walker "announced his ruling in favor of the plaintiffs, overturning Proposition 8 based on the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution. Walker concluded that California had no rational basis or vested interest in denying gays and lesbians marriage licenses. ... He further noted that Proposition 8 was based on traditional notions of opposite-sex marriage and on moral disapproval of homosexuality, neither of which is a legal basis for discrimination. He noted that gays and lesbians are exactly the type of minority that strict scrutiny was designed to protect."
posted by ericb at 11:26 AM on December 12, 2012


oh, and for the 'sanctity of marriage' crowd, making marriage an entirely religious and cultural construct with no legal backing is great! I once knew two roommates who got a legal marriage to save money on their shared insurance, for example. I have no problem with that myself, but ultimately people in situations like this are ill-served by the inability to not also take on the parts of legal marriage that don't suit their situation.

If there's no legal standing to marriage, that doesn't happen. The only marriages that would happen are those driven by religious, social or cultural reasons. Improved finances and visitation rights (or whatever) as motivation to get married doesn't really fit with the whole "it's a religious thing" premise.
posted by vibratory manner of working at 11:28 AM on December 12, 2012


Well, ericb, like I said, you might disagree. Judge Walker and a couple of circuit judges certainly have. But others don't, and so I guess we'll find out who's rational and who isn't when our nine lawyers tell us.
posted by resurrexit at 11:38 AM on December 12, 2012


Pages 1 and 2 are the summary of the argument, but this whole brief's worth reading. It is an intentionally secular, reasoned defense of marriage. You might disagree with it, but there it is.

*collapses with laughter*

Neither the Prop 8 proponents, nor anyone else I've read, has been able to explain how prohibiting same-sex marriage has a positive effect in encouraging "the state’s interest in “steering procreation into marriage … justifies conferring the inducements of marital
recognition and benefits on opposite-sex couples, who can . . . produce children
by accident, but not on same-sex couples, who cannot.” Citizens for Equal Prot. v.
Bruning, 455 F.3d 859, 867 (8th Cir. 2006)."

Can you explain your understanding of how that's supposed to work? It's fine - preferable, even - to use your own words.
posted by rtha at 11:56 AM on December 12, 2012




rtha, I can't argue it any better than it was done in that brief. The point is argued in there, see the paragraph at pp. 9-10 (PDF pages 13-14). So if you're not convinced, I'm not going to be able to do it either.

Nah, screw it, here goes:

(1) Opposite sex couples can and do normally procreate.***It's impossible for the state to determine where people fall along the fertility spectrum without a massively intrusion of privacy of the sort found impermissible in Griswold v. Connecticutt, so the infertile or elderly couple marriage ban argument must fail. On the other hand it is very easy to determine that, normally, a man and woman of sufficient maturity will be able to procreate, and thus carry the high risks and rewards of irresponsible and responsible procreation.***
(2) There are lots of risks to the state if its citizens procreate irresponsibly.
(3) To encourage responsible procreation and, thus, a chance (of course there's no guarantee) at kids turning out decently, the state channels that procreative possibility into marriage by recognizing marriage and granting married people certain rights and responsibilities.

The same-sex marriage advocates' response to this is, hey, not fair, we can raise kids, too, and we have some evidence that our kids turn out just as good as kids raised by their biological mother and father--which is implicitly recognized as the sort of gold standard for child-rearing (and the reply I linked above says, basically, the same-sex parenting advocates' evidence stinks). But the flaw is that same-sex marriage advocates ignore the reality of "(1)", above, which is that no same-sex marriage can normally produce kids--that result is abnormal--and there is thus no risk to the state of irresponsible procreation. Thus, there is no need to incentivize same-sex relationships as marriage.

Thus, it is at least rational*** for the state to recognize opposite-sex only marriage and not to offer the same recognition to relationships between people of the same sex.***Of course, this all goes out the window if strict scrutiny is applied rather than the traditional rational basis or, perhaps, whatever level of scrutiny Lawrence applied.
posted by resurrexit at 12:56 PM on December 12, 2012


Or, as the brief puts it:
Thus, even if Plaintiffs were right that it matters not whether children are raised by their own parents or by any two males or any two females, it would still be perfectly rational for the State to make special provision through the institution of marriage for the unique procreative risks posed by sexual relationships between men and women.
posted by resurrexit at 1:00 PM on December 12, 2012


> same-sex marriage advocates ignore the reality of "(1)", above, which is that no same-sex marriage can normally produce kids--that result is abnormal--and there is thus no risk to the state of irresponsible procreation. Thus, there is no need to incentivize same-sex relationships as marriage.

Therefore, by the same logic, you presumably think opposite-sex couples who cannot have children should not be allowed to marry.
posted by languagehat at 1:03 PM on December 12, 2012 [1 favorite]


No, see these two sentences I just wrote: It's impossible for the state to determine where people fall along the fertility spectrum without a massively intrusion of privacy of the sort found impermissible in Griswold v. Connecticut [I'll go ahead and spell that correctly here], so the infertile or elderly couple marriage ban argument must fail. On the other hand it is very easy to determine that, normally, a man and woman of sufficient maturity will be able to procreate, and thus carry the high risks and rewards of irresponsible and responsible procreation.
posted by resurrexit at 1:06 PM on December 12, 2012


Thus, there is no need to incentivize same-sex relationships as marriage.

As an adopted child, and living in a country where there are 100,000 children in foster care who need adoptive parents, I can think of one very good reason to incentivize same-sex relationships as marriage.
posted by Bunny Ultramod at 1:08 PM on December 12, 2012




Unmarried adults are also allowed to give birth to children.
posted by Bunny Ultramod at 1:14 PM on December 12, 2012


Yes, but it's objectively (okay, as objective as social sciences can be) better for them to do so in the context of marriage, so states recognize and incentivize that.

I guess states let unmarried people adopt because they realize that, while two parents are better than one, one parent is better than none? I don't know.
posted by resurrexit at 1:17 PM on December 12, 2012


I can't argue it any better than it was done in that brief

And it's a terrible argument. So, go you, I guess.

Again, please explain why prohibiting same-sex couples from marrying is a thing that acts as a positive encouragement for opposite-sex couples to marry. How does its prohibition incentivize opposite-sex marriage?

"As of 2010, every state in the U.S. allows unmarried men and women to adopt

But in some states, not if they're gay and living with their partner! And especially if both people want to legally be the child's parents!

Oh, the irony.
posted by rtha at 1:19 PM on December 12, 2012


Barney Frank* on 'Real Time With Bill Maher' (March 11, 2005):
"I try very hard to be a responsible citizen and as a gay man I try very hard to keep track of the marriages I have destroyed, and there really aren't that many. I may have some secret admirers out there and I may have wreaked more havoc than I realize, but they haven't called."
* -- Barney Frank married his longtime partner, Jim Ready on July 4, 2012.
posted by ericb at 1:23 PM on December 12, 2012


So if it is objectively better for a child to be raised by two parents, then it is objectively better for a child to be raised by two gay parents, and it makes sense to incentivize gay marriage, because gays are capable of -- and often do -- adopt.
posted by Bunny Ultramod at 1:23 PM on December 12, 2012


It's impossible for the state to determine where people fall along the fertility spectrum without a massively intrusion of privacy of the sort found impermissible in Griswold v. Connecticut

No it isn't, no matter how firmly the losing side of Perry might wish it to be. The state can reasonably assume that all women over 65 are infertile and, by their rationale, bar them from marriage. The state will already be inquiring as to the age of both parties, so there is no privacy implication of imposing a maximum age on women. For that matter, by their rationale it would be permissible for the state to automatically dissolve all marriages on the bride's 65th birthday, since there can be assumed to be no further any risk of procreation.

Again, please explain why prohibiting same-sex couples from marrying is a thing that acts as a positive encouragement for opposite-sex couples to marry. How does its prohibition incentivize opposite-sex marriage?

That's not the argument that the intervenors in Perry are making. They're not saying "We need to keep gays from marrying to encourage straights to do so." They're saying "Straights can have kids, so we need to give them goodies (the various benefits of marriage) to encourage them to stick around. Gays can't make babies together, so we have no reason to care whether they stay together." Which is, even by their logic, merely a lack of an actively positive reason to let same-sex couples marry, and not an active reason to deny it.
posted by ROU_Xenophobe at 1:26 PM on December 12, 2012


LiveScience: Gay Parents Better Than Straight Parents? What Research Says.
posted by ericb at 1:34 PM on December 12, 2012


rtha, I think the questions you're asking are good ones, but they're not the questions a court performing judicial review of a statute or whatever will be asking.

The rational basis test asks whether the government's action (e.g., in California, a constitutional amendment) is a reasonable means to a legitimate end. Is responsible procreation a legitimate concern of government? Sure. Is recognizing and incentivizing opposite-sex relationships--the only type of relationship which is normally and routinely procreative--with the status of marriage a reasonable means toward reaching that end. I think so.

So the questions aren't whether also denying the marriage right to people who want to marry someone of the same sex, when they normally cannot procreate (responsibly or otherwise) advances that end or doesn't--it's just whether the means chosen reasonably achieves that legitimate end.

If some heightened form of scrutiny--i.e., more than the rational basis test--is applied to state marriage laws, however, then all bets are off, and maybe the hypertechnical arguments you guys are making about two-gay-parent adoption, elderly people getting and remaining married, etc., will have an effect and tip the balance in favor of unconstitutionality.
posted by resurrexit at 1:34 PM on December 12, 2012


Ah, the conservative, right-wing canard: the "Responsible Procreation Argument."

The Descent of the Responsible Procreation Defense: A Genealogy of an Ideology.

Marriage As a Message of Responsible Procreation?

Marriage as a Message: Same-Sex Couples and the Rhetoric of Accidental Procreation.

A Presumptuous Phrase: Responsible Procreation.
It's always teeth-gritting time when the debate over same-sex marriage turns to the words "responsible procreation," a phrase that I used to think meant not having children without the ability and commitment to care for them well. It was about pureed peas, not whether your relationship was with a person of the same or opposite gender.

Yet, as illogical as the argument about procreation always seems, it of course came up again Monday in the U.S. 9th Circuit Court of Appeals as the defenders of Proposition 8 sought to argue that society has a valid basis for regulating which adults can marry because marriage exists for the purpose of responsible procreation and the rearing of children by their biological parents.

If that's the purpose, why on earth do we let people marry who have no interest in having children? How can we let the elderly marry, or people with infertility problems? Why do we let people who aren't ready for responsible child-rearing give up their children for adoption, and why do we let couples who have all the desire and ability for children adopt them, and why do we let inattentive parents get married?

One could almost feel sympathy for the lawyers defending Proposition 8 -- that they have so little else on which to base their arguments than a view of families so rigid and narrow that while it insults same-sex couples, it also puts down blended families, adoptive couples, married-but-childless couples and people who find love late in life.
posted by ericb at 1:45 PM on December 12, 2012


I can't determine whether the case is about incentivizing procreation or incentivizing a relationship that will be best for a child should procreation occur. If it's the former, well, it's not the job of government to encourage procreation. If it's the latter, then the actual issue is what's best for the child, in which case the manner of procreation doesn't matter, neither does the gender of the parents.

This doesn't seem to me to be a strong case against gay marriage. It just seems like handwavy "it's all about the children" stuff.

Regardless, the question of equal treatment under the law isn't rooted in what's best for children. It's rooted in making sure that people aren't denied rights that others have access to. This side argument neatly -- and I think deliberately -- sidesteps the actual discussion, which is should gays and leabians have equal legal footing as committed partners that straight partners have. And that question remains whether or not there are any children around.
posted by Bunny Ultramod at 1:47 PM on December 12, 2012


"Yes, a person can't marry a person of the same sex; a person can't marry a dog; therefore, gay people must be dogs. :/"

You were the one engaging in the slippery slope fallacy — don't try to pin your broken syllogism on me.

"My point with the hypotheticals was that we have purportedly rational bases for any number of restrictions states place on the marriage right. If states are forced to redefine the marriage right in the manner in which same-sex marriage advocates have put before the federal courts, then the rational bases for many other restrictions on marriage--which of course are different owing to the different manner in which they would change either the object or subject of the marriage right and, thus, of course "are not predicated upon LGBT people not being able to marry"--are no longer rational. "

That's not true at all. It assumes that we can't reason on the merits of each individual case. That's a profoundly silly position to take, and one that doesn't require serious rebuttal.

"And klangklangston, the answers to those questions aren't relevant to our discussion. It should suffice for you that I am interested in the outcome of this argument and am determined to participate in it in defense of my positions."

Yes, they are. They allow me to gauge your starting assumptions and dispense with attacking weak premises that you've evidenced but may not feel reflect your position.

Also, those aren't personal questions, so I'm not sure why you're playing so coy about answering them.

"The same-sex marriage advocates' response to this is, hey, not fair, we can raise kids, too, and we have some evidence that our kids turn out just as good as kids raised by their biological mother and father--which is implicitly recognized as the sort of gold standard for child-rearing (and the reply I linked above says, basically, the same-sex parenting advocates' evidence stinks). But the flaw is that same-sex marriage advocates ignore the reality of "(1)", above, which is that no same-sex marriage can normally produce kids--that result is abnormal--and there is thus no risk to the state of irresponsible procreation. Thus, there is no need to incentivize same-sex relationships as marriage."

This is fatuous nonsense. Ignoring the fact that studies of same-sex couples have come to very methodologically strong conclusions, even the final conclusion is easily rebutted with less than a sentence: Even if we don't need to incentivize loving, committed same-sex couples to procreate by the mechanism of marriage, that isn't an argument to exclude them. That's discrimination: It's unfair and wrong.

"Thus, even if Plaintiffs were right that it matters not whether children are raised by their own parents or by any two males or any two females, it would still be perfectly rational for the State to make special provision through the institution of marriage for the unique procreative risks posed by sexual relationships between men and women."

But that is not a rational argument for the exclusion of loving, committed same-sex couples. You can make the rational argument that you need to incentivize opposite-sex couples (though I don't think there's a reasonable amount of evidentiary data on that), but it does not follow that you need to exclude others unless their inclusion would damage the benefit that exclusivity confers. As we have many states where the freedom to marry is the law of the land, and we have seen literally zero people not getting married because LGBT people can, this is not a rational basis for exclusion.

Your argument, briefly stated, is absolute bullshit. And, to draw back to prior, the point of my asking you those questions was to discern whether your propensity to proffer bullshit came from ignorance or animus. Please do answer them.
posted by klangklangston at 2:19 PM on December 12, 2012


But that is not a rational argument for the exclusion of loving, committed same-sex couples.

Well, that's not the test, as I've stated above. The test is whether including only opposite-sex couples in the definition of marriage is a reasonable means to the end of responsibly raising children. It's not also whether excluding other types of relationships from that definition is unreasonable.
posted by resurrexit at 2:48 PM on December 12, 2012


And I'm not going to give you any more ad hominem ammunition than you already have, since you've probably convinced many people not to pay attention to me because I'm so obviously stupid and fatuous and handwavy, nothing more than a bullshit-spewing theocrat.

Whatever helps you to avoid my actual arguments. "You must show that a man is wrong before you start explaining why he is wrong."
posted by resurrexit at 2:51 PM on December 12, 2012


"Well, that's not the test, as I've stated above. The test is whether including only opposite-sex couples in the definition of marriage is a reasonable means to the end of responsibly raising children. It's not also whether excluding other types of relationships from that definition is unreasonable."

First off, that's not the test. Second off, it's clearly not rational to include only opposite-sex couples in the definition of marriage as a means to encourage responsible raising of children. There's literally no rational basis for that conclusion — it only comes from disregarding evidence and intentionally discriminating against your fellow citizens. You cannot simultaneously argue for "only" and ignore discrimination.

Further, please answer the questions. They're important.

"And I'm not going to give you any more ad hominem ammunition than you already have, since you've probably convinced many people not to pay attention to me because I'm so obviously stupid and fatuous and handwavy, nothing more than a bullshit-spewing theocrat.

Whatever helps you to avoid my actual arguments. "You must show that a man is wrong before you start explaining why he is wrong."
"

Your actual arguments are tissue-thin and need only a sneeze to blow them away. I have not said that you are stupid, nor a theocrat — however, your arguments are stupid (and fatuous and bullshit) and you are parrotting the talking points of self-avowed theocrats.

But please, what arguments do you think I've failed to engage with? Or is that question too scary for you to answer too?
posted by klangklangston at 2:55 PM on December 12, 2012 [1 favorite]


CDC Warns Of New Epidemic Of SCOTUSITIS
The Center for Disease Control (CDC) has issued an urgent warning for LGBT Americans. There has been an outbreak of a new bacteria called SCOTUSITIS. Symptoms include endless hand-wringing, sleepless night, anxiety attacks and the inability to have a conversation without blurting out the latest speculation about marriage and the Supreme Court of the United States.

While the CDC does not believe the emerging SCOTUSITIS is fatal, it can hamper holiday cheer, good conversation, block the latest gossip and leave those effected with a vacant and worried look. Some of those impacted wish the marriage issue had never arrived at this point of decision and others walk around confidently despite being infected.

The CDC has announced that those impacted could not be in better shape to fight this virus. LGBT Americans won four ballot measure, have the best attorneys in America, enters the case with the best momentum in years and has the tide of justice behind their backs. While nothing can reassure those attacks of nerves, one thing is clear. The disease must be suffered in order to reach a cure.
posted by ericb at 3:21 PM on December 12, 2012


Dana Milbank:
"If Scalia is to honor his own principle, he’ll vote to strike down DOMA and give his blessing to those states that wish to legalize gay marriage. But don’t count on it."
posted by ericb at 3:22 PM on December 12, 2012


Further, please answer the questions. They're important.

Fine, then I am a homosexual atheist, raised Zoroastrian.

Does that help you understand my arguments better? Of course not. I am not on trial. My case is not before the Supreme Court. We are discussing laws and ideas. If who I am or what I believe has an effect on my argument--when I have based my arguments not on who I am or what I believe or don't believe--you're probably wandering into ad hominem land, and that's counterproductive, not to mention violative of "focusing comments on the issues, topics, and facts at hand—not at other members of the site."

You have engaged my arguments--to a point. For example, let's look at this:

First off, that's not the test. Second off, it's clearly not rational to include only opposite-sex couples in the definition of marriage as a means to encourage responsible raising of children. There's literally no rational basis for that conclusion — it only comes from disregarding evidence and intentionally discriminating against your fellow citizens. You cannot simultaneously argue for "only" and ignore discrimination.

Well, what is the test?

It's not rational because...it's not rational? What? Because it disregards evidence and discriminates! Q.E.D.! Lots of laws discriminate. The court asks, with varying levels of scrutiny--is this particular discrimination okay? So what's the test? How will the Supreme Court articulate it?
posted by resurrexit at 3:23 PM on December 12, 2012


"Fine, then I am a homosexual atheist, raised Zoroastrian."

It's really odd, then, that you've internalized a certain brand of reactionary Christian talking point. By what right should those reactionary Christians be able to decide whether or not you marry?

But you still didn't answer the actual questions I asked.

"Does that help you understand my arguments better? Of course not."

That's pretty rich — blaming me for my questions not serving their purpose after not answering them.

I am not on trial. My case is not before the Supreme Court.

Nope. If you want to read the relevant decisions, that might help you understand the current legal questions.

We are discussing laws and ideas. If who I am or what I believe has an effect on my argument--when I have based my arguments not on who I am or what I believe or don't believe--you're probably wandering into ad hominem land, and that's counterproductive, not to mention violative of "focusing comments on the issues, topics, and facts at hand—not at other members of the site."

That's idiotic. Arguing that knowing someone's positions — which is what I asked — is tantamount to ad hominem fallacy is preposterous.

"Well, what is the test?

It's not rational because...it's not rational? What? Because it disregards evidence and discriminates! Q.E.D.! Lots of laws discriminate. The court asks, with varying levels of scrutiny--is this particular discrimination okay? So what's the test? How will the Supreme Court articulate it?
"

First off, you hadn't asked me to articulate a test. But Judge Walker lays out a fair demolishment the Hollingsworth position's claims to rationality: They offered zero actual evidence to connect exclusivity (or the denial of marriage to loving same-sex couples) with procreative incentive. So it's not irrational because it's irrational — it's irrational because there's no basis for concluding that the exclusivity is either necessary or sufficient to ensure the incentive of marriage to otherwise single opposite-sex couples.

(But, as this is an issue of sex discrimination, strict scrutiny is applicable in this non-lawyer's eyes.)

And that's not the only ridiculous argument you've presented. You've trotted out quite a few risible bits of absolutely vacuous nonsense that seems to be regurgitated directly from right-wing talking points digested uncritically. I'm sorry that you don't feel that I've been properly deferential, but I think it's fair when someone shovels bullshit onto my shoes to complain about the stink.
posted by klangklangston at 4:28 PM on December 12, 2012 [1 favorite]


If the arguments against marriage equality expressed in this thread are the best that opponents can come up with, they should just pack it up and go home.
posted by octothorpe at 7:38 PM on December 12, 2012


If the arguments against marriage equality expressed in this thread are the best that opponents can come up with, they should just pack it up and go home.

Well, it is perhaps enough to note that they have been evaluated and discounted in many other contexts, so it seems unusual to bring them up again, certainly.
posted by Blazecock Pileon at 11:34 PM on December 12, 2012


Fine, then I am a homosexual atheist, raised Zoroastrian.

I kinda suspect {/} you are lying there. Oh.. or are you trying to make a 'point'? *sigh*


As near as I can tell, in all the verbage the argument being advocating is that: People who are gay should not be allowed to marry because they can not procreate with their partner. And you can't apply the same standard to straight people who marry, because it would require some sort of fertility test, and that would be OMG so much worse.

Yes?

Nearly 41% of all births int the US currently are to unmarried women. And the rate of people actually marrying is declining significantly as well, just just barely over 50%. I would say that if marriage is all about the the government being concerned for the kids - marriage, and the government is failing dramatically. Indeed, I know of a few families, with multiple children, a man and a woman, who specifically are NOT getting married because of marriage inequality.

you've probably convinced many people not to pay attention to me because I'm so obviously stupid and fatuous and handwavy, nothing more than a bullshit-spewing theocrat.

To be fair, tacitly equating people who are gay wanting equal legal protection with people marrying their dogs kinda made the point perfectly fine without others intervention.

Whatever helps you to avoid my actual arguments. "You must show that a man is wrong before you start explaining why he is wrong."

Fine: Marriage is not exclusively about procreation, that is a narrow (in more ways than one) interpretation. Would you, resurrexit, have married your wife if either of you where infertile? Do you think fertility should be the overriding factor in deciding who to marry? Are we really just cattle in the eyes of the government?
Right here, right now, marriage is not solely about reproduction. It is about commitment, it is about allowing another person into your life that you trust enough to make decisions on your behalf, it is about long term stability, it is about expressing love, it is about finances, it is about security, it is so much more then just breeding.

Marriage is a social institution that has, and can change, it is not a fixed thing with a definition that needs to be static throughout all time. We don't trade our daughters for 5 goats and a chest of halibut, we don't insist on racial purity, and we sure as hell don't need more souls on this earth at this time, we have enough now, thanks. We can be better than we are.

(parenthetically, "9 lawyers" is an awful system to decide things like this. Talk about a group of people divorced from everyday life)
posted by edgeways at 5:24 AM on December 13, 2012


Frank Bruni | The New York Times: Examining the Support for Same-Sex Marriage.
posted by ericb at 11:05 AM on December 13, 2012


L.A. Times: The 'animus' of Justice Scalia -- "His arguments in gay rights cases betray an animosity toward homosexuals."
posted by ericb at 11:08 AM on December 13, 2012


The New Yorker: The Animus of Antonin Scalia.
posted by ericb at 11:09 AM on December 13, 2012


From the New Yorker link:

Scalia clings to hate—what he calls animus—because he’s got nothing else;

And he's slow to learn, apparently, that this is a poor foundation on which to build laws and the rationale for them. Truly, if all you've got is "We're gonna keep [thing] illegal because we think it's icky," then you don't have much. You can stamp your feet all you like when public opinion comes around to not finding [thing] icky anymore, and that and four dollars will get you a cup of coffee.

In the other recent same-sex marriage thread, someone made vague allusions to unnamed harms that could come about (have come about? it was unclear) as a consequence of allowing for federal recognition of same-sex marriages, and I asked what those harms could be. I still don't know.
posted by rtha at 11:56 AM on December 13, 2012


You've trotted out quite a few risible bits of absolutely vacuous nonsense that seems to be regurgitated directly from right-wing talking points digested uncritically.

Not true, I've read the relevant cases and spent time studying the aspects of constitutional law that apply to this situation. I have also thought about how these issues will affect me personally. I don't accuse folks on here of not digesting what they get from left-wing sources, and say "oh well you're just copying Maddow, and I reflexively don't like her, so I'm tuning out"--I sort of take it as a given that there are only so many arguments on the opposing side and, surprise, most of them will sound the same. I only rarely hear new arguments on this gay marriage issue, and you probably don't hear many new ones either. It's going to come down to what nine lawyers say, and whichever five come out on top will show their work by writing down the best, most defensible arguments from the side whose outcome they agree with.

It is about commitment, it is about allowing another person into your life that you trust enough to make decisions on your behalf, it is about long term stability, it is about expressing love, it is about finances, it is about security, it is so much more then just breeding.

If that is the rational basis for expanding marriage laws to include same-sex marriages while excluding other hypothetically-horrible human relationships from the marriage right, then don't act surprised when other restrictions states place on the marriage right fall one by one. Calling that a "slippery slope" argument is incorrect--it's only a fallacious slippery slope when you don't show your work to show how you get from the first action to each of the subsequent results.

So here's a result. Tell me how, based on your definition of the concept of marriage--if the state's rational basis for including same-sex couples in marriage but excluding others is respecting a commitment and sharing decision-making and finances, etc.--laws against adult, same-sex incest can stand? It works for females too. There is no chance of procreation at all, so there go the genetic concerns, and also no need to protect against irresponsible procreation (such a preposterous notion, I know).

Why can an 25 year-old man not marry his father based on that definition? What non-religious, non-tradition-based, non-"ew gross" notion can a state appeal to as a rational basis for upholding a ban on such marriages? If a father and son in this position are denied a marriage license and sue, using the same-sex marriage cases as precedent, what does a state attorney general stand up and argue as a justification for denying them a license?
posted by resurrexit at 1:14 PM on December 13, 2012


Why can an 25 year-old man not marry his father based on that definition?

Incest is illegal; homosexuality, not.
posted by ericb at 1:53 PM on December 13, 2012


With all of this sanctity of marriage, procreation and opposite sex parenting I vote we make divorce illegal!
posted by ericb at 1:54 PM on December 13, 2012


woo bestiality and incest.

But ok... worst case scenario? Why not?

I mean if you really want to run down all the "OMFG scenarios" to the extreme. Come back to me and tell me a reason why two adult same sex relatives should not be married. Without resorting to "teh babies!"
Perhaps it is worth it to consider laws against same sex adult incest marriage could be kind of stupid. But I secretly suspect, you gay atheist you, what you are really trying to do is make it sound so positively gross and extreme as a shock tactic. I mean good grief, did you stay up late last night thinking of this one?

Can you see how convoluted your arguments are getting?
> Marriage is about the best situation for babies to be born in.
>Therefor government is actively engaging in shaping society at-large by encouraging marriage only between people who have the potential to actually breed.
(please disregard women over 65, they can also marry...well, just because.)
>-BUT- there can not be a fertility test because that would infringe on straight people's privacy, despite marriage being a government institution to foster baby making (and the government has NO trouble in demanding all manner of private data for other benefits it doles out).
>Same Sex marriage equality would mean same sex people who are related most also be allowed to marry, even if they are father and son! I guess if the dog thing doesn't work, fall back on the incest thing?

Fine, I tell you what. If we accept that marriage is a means to convey benefits to baby making households. I submit that it is a type of welfare, a subsidy if you will, and that in order to be eligible for this type of welfare you (and your wife) have to submit to fertility testing to continue to receive said benefits, and if you have not procreated within (let's be generous) 5 years of the issuance of the marriage certificate you are automatically divorced from one another. I mean it IS all about government encouraging procreation in the best possible circumstances right? If states can demand the level of information they do for welfare recipients, it isn't that big an intrusion right? Not that much more than a blood test. You don't mind stopping by the local govt center and making a deposit eh? Your wife a quick trip to the Ob/Gyn. 1 child min, 2 encouraged. Lets get serious about this baby production already. -This is just as serious as your reduction to absurdity above.
posted by edgeways at 2:07 PM on December 13, 2012


"Not true, I've read the relevant cases and spent time studying the aspects of constitutional law that apply to this situation."

Well, then, why are you asking us what's so ably demonstrated by Judge Walker in the fact-finding portion of his decision, and why are you arguing in reference to these cases facts that have emphatically not been demonstrated?

"and say "oh well you're just copying Maddow, and I reflexively don't like her, so I'm tuning out"--I sort of take it as a given that there are only so many arguments on the opposing side and, surprise, most of them will sound the same."

Part of the problem is that those arguments are facially invalid — like Scalia's holding that without moral basis for laws, we couldn't prohibit murder — and much of the opposite talking points are framed specifically with homophobia as their emotional justification. Further, the point I was making wasn't the ad hominem you're resorting to with Maddow, but rather why you haven't bothered to think through these things that you're writing out, especially when they're so obviously soaked with anti-LGBT animus (the dog comment especially).

"If that is the rational basis for expanding marriage laws to include same-sex marriages while excluding other hypothetically-horrible human relationships from the marriage right, then don't act surprised when other restrictions states place on the marriage right fall one by one. Calling that a "slippery slope" argument is incorrect--it's only a fallacious slippery slope when you don't show your work to show how you get from the first action to each of the subsequent results."

It is a slippery slope fallacy — Scalia's recent comment is an excellent example of that. It implies there are no distinctions between various acts other than a vague moral opprobrium. Basic concepts that are inapplicable to the freedom to marry in the case of loving, same-sex couples, do apply elsewhere, like social cost. Marriage for same-sex couples has zero actual, demonstrable harm; most of the other examples do.

"So here's a result. Tell me how, based on your definition of the concept of marriage--if the state's rational basis for including same-sex couples in marriage but excluding others is respecting a commitment and sharing decision-making and finances, etc.--laws against adult, same-sex incest can stand? It works for females too. There is no chance of procreation at all, so there go the genetic concerns, and also no need to protect against irresponsible procreation (such a preposterous notion, I know). "

John Corvino deals with this quite elegantly. The shortest version is that there are many arguments for letting same-sex couples marry, and that it isn't a connected question for incest. Incest proponents are free to make their own case, but arguing that we must tolerate it because gays or some such is unconvincing.

Further, it's worth noting that the incest argument is more of a loser for you: Outside of the general icky feeling, why should we prohibit those hypothetical consenting adults from getting married? A look at national and international laws around this doesn't show any great global consensus, and certainly we don't think of Spain or Portugal as depraved hell-pits. Nor Rhode Island, that has no law preventing it.

But this all mistakes the burden of proof: The idea that advocates of marriage for same-sex couples have to come up with a compelling argument against incestuous marriage is flawed — let incest advocates come up with a positive argument for it. And the idea that these two things are inherently connected outside of a narrow moral view likewise has not been demonstrated by you.

"Why can an 25 year-old man not marry his father based on that definition? What non-religious, non-tradition-based, non-"ew gross" notion can a state appeal to as a rational basis for upholding a ban on such marriages? If a father and son in this position are denied a marriage license and sue, using the same-sex marriage cases as precedent, what does a state attorney general stand up and argue as a justification for denying them a license?"

Wait, you want to ask us questions when you won't answer ours? Seems a bit hypocritical, don't it?
posted by klangklangston at 2:23 PM on December 13, 2012 [1 favorite]


Come back to me and tell me a reason why two adult same sex relatives should not be married. Without resorting to "teh babies!" Perhaps it is worth it to consider laws against same sex adult incest marriage could be kind of stupid.

Well that's my point; once same-sex marriage is federally-mandated to be recognized in every state, I can't think of a reason.

There can not be a rational basis to oppose it that doesn't fall back on "well it is bad because it undermines the family" or "it could be used for fraudulent intergenerational transfers of property" or something--proponents of same-sex-same-family marriage would say those are homo-homo-phobic, traditionalist, dogwhistle tactics by theocrats hell-bent on discriminating against homo-homo-sexuals.

If a state's people can't limit the marriage right in the manner they've traditionally been able to--which is what these marriage cases will have to say to mandate state recognition of same-sex marriages--then a lot of other legal restrictions we currently have are going to be struck down as well. If there can't be a rational basis for opposite-sex-only marriage, there can't be a whole lot of other rational bases.

I'm sorry I can't identify them all right now, it's kind of hard for me to see how badly this will impact society other than to recognize that it will be bad in many ways--which ought to be reason enough to move slowly in this area and let states try it out one by one rather than forcing it on all the states.
posted by resurrexit at 2:26 PM on December 13, 2012


Marriage for same-sex couples has zero actual, demonstrable harm; most of the other examples do.

But I've stated before that I believe there will be a social cost. An end to all social services provided indirectly by the state by way of intermediaries that do not, and cannot as a matter of conscience, recognize same-sex couples as being married. That loss will be enormous, and how will that be offset by the gain from same-sex couples getting the benefits of an institution that was never designed to benefit their childless unions in the first place?

Your response is, essentially, fuck them, they are theocrat haterz. That's an enormous social disturbance with minor, individualized benefits.
posted by resurrexit at 2:32 PM on December 13, 2012


There is nothing elegant about that Corvino article that hasn't already been addressed in this thread by proponents of same-sex marriage. I.e., if those other relationships come to pass, that's not the fault of homosexuals. Of course that's true in the most direct sense, but not true at all in the legal sense.

A much better argument for homosexual relationships begins with an analogy: homosexual relationships offer virtually all of the benefits of sterile heterosexual relationships; thus, if we approve of the latter, we should approve of the former as well. For example, both heterosexual relationships and homosexual relationships can unite people in a way that ordinary friendship simply cannot. Both can have substantial practical benefits in terms of the health, economic security, and social productivity of the partners. Both can be important constituents of a flourishing life. Yes, they feel good and we want them, but there's a lot more to it than that. These similarities create a strong prima facie case for treating homosexual and heterosexual relationships the same — morally, socially, and politically.

“But wait,” say the opponents. “Can't you make the same argument for PIB relationships?” Not quite. It is true that you can use the same form of argument for PIB relationships: PIB relationships have benefits X, Y, and Z and no relevant drawbacks. But whether PIB relationships do in fact have such benefits and lack such drawbacks is an empirical matter, one that will not be settled by looking to homosexual relationships.


But he misses the point because, while he's arguing morality, and that the considerations against homosexuality are different than the considerations against PIB relationships, the Supreme Court won't be asking those questions. The federal courts ask what is the rational basis for your law opposing X? If there is no rational basis for opposing homosexual relationships, then the currently-existing rational bases for opposing PIB relations are weakened terribly, and there is little standing in the way of their mandated recognition in all states, and imbued with the rights attendant upon marriage.

His purportedly moralist analysis is not a legal analysis.
posted by resurrexit at 2:44 PM on December 13, 2012


Further, he compares homosexual marriages to sterile opposite-sex marriages, saying each provide the same benefits. But he ignores that (1) a man's or woman's fertility is not a black-or-white, inexpensive, easily identifiable condition by a local marriage license office,* but rather something that falls along a vast continuum, while (2) sterility is the norm for homosexual couples. Naturally, they will never produce offspring, so there is no risk to the state, and so no reason to reward their unions with the benefits attendant upon marriage. Heterosexual sex practically always results in children; homosexual sex does not; because irresponsible procreation is a bad thing, heterosexual marriage is the norm and is recognized and endowed with certain benefits, and homosexual marriage is not.
posted by resurrexit at 2:52 PM on December 13, 2012


*You'll pardon me if I refuse to deal seriously with the suggestion that masturbating into a cup or having one's eggs extracted are simple, non-invasive procedures the government ought to perform prior to issuing a marriage license and throughout the duration of the marriage.
posted by resurrexit at 2:54 PM on December 13, 2012


Wait, you want to ask us questions when you won't answer ours? Seems a bit hypocritical, don't it?

Why keep engaging with him? He does not address our comments in good faith, and he is constantly regurgitating decades-old and long-discredited conservative stereotypes and talking points.
posted by Blazecock Pileon at 3:39 PM on December 13, 2012 [1 favorite]


*You'll pardon me if I refuse to deal seriously with the suggestion that masturbating into a cup or having one's eggs extracted are simple, non-invasive procedures the government ought to perform prior to issuing a marriage license and throughout the duration of the marriage.

If you want to receive welfare subsidies from the government based on an institution that is supposed in place to promote procreation you bet you should take it seriously. Otherwise you get all manner of people gaming the system to receive those benefits who are unable or unwilling to produce the goods (so to speak). As a taxpayer I think I should demand you show proof of intent and capability. Right?

I mean you want us to deal seriously with dog marriage and incest marriage, so I think marriage welfare reform should be on the table as well.

...an institution that was never designed to benefit their childless unions in the first place?
What, that institution that was designed to barter off your daughters in the first place? If you are trying to be 'orginalist' about marriage then go back and start advocating for arranged contacts between families. It was originally about ownership of the woman, and wasn't "designed" to benefit anyone except the guys int he situation.

and really I think you are being all handwavy with the "but the specific religious groups will no longer get those sweet government tax dollars to do their thing that has some social benefit, anymore", why again is religious discrimination such a good thing? So far in US history it has pretty much been "fuck them they're gay" (to borrow your semantics), and now that the major perpetrators of that sentiment may have to adapt to a society that no longer says that quite so loudly... I'm suppose to what? Feel sorry for them? Accommodate their intolerance? because no matter how you wrap it up and beat it with a cross it is still intolerance. there are multiple christian and other religious groups who are just fine with marriage equality, but we have to play nice with the bully now that he no longer has such a big club?

I tell you what though. If at the end of the day you hold firmly upon the notion marriage is solely about popping out government sanctioned kids to a nuclear family you are holding the short end of the stick, no matter how many dog-father fucker arguments you care to analogize with.
posted by edgeways at 3:39 PM on December 13, 2012 [2 favorites]


"Well that's my point; once same-sex marriage is federally-mandated to be recognized in every state, I can't think of a reason. "

And again, your failure of imagination is not at all the problem of LGBT people.

"There can not be a rational basis to oppose it that doesn't fall back on "well it is bad because it undermines the family" or "it could be used for fraudulent intergenerational transfers of property" or something--proponents of same-sex-same-family marriage would say those are homo-homo-phobic, traditionalist, dogwhistle tactics by theocrats hell-bent on discriminating against homo-homo-sexuals. "

… in this incredibly narrow and unlikely case of same-sex, same-family couples. And your answer is that we should oppose it because there isn't a rational basis to oppose it?

Further, it's worth noting that these exact same arguments were used against interracial marriage.

"But I've stated before that I believe there will be a social cost. An end to all social services provided indirectly by the state by way of intermediaries that do not, and cannot as a matter of conscience, recognize same-sex couples as being married. That loss will be enormous, and how will that be offset by the gain from same-sex couples getting the benefits of an institution that was never designed to benefit their childless unions in the first place? "

You may believe in unicorns for everyone, but that doesn't mean the rest of us need order harnesses.

This same argument could have been applied to interracial marriage, again. If it is more important for these churches to provide social services than discriminate against LGBT people, they will do so.

And more fundamentally, you're arguing from a position that assumes that these churches have a right to public money — including money from LGBT people — in order to perform their missions. They do not. The funds are provided in order to accomplish a policy goal, not because the U.S. feels obligated to tithe. Can that policy goal be accomplished through a non-discriminatory agency? Yes.

Regarding your claim that marriage was designed: This is also a bafflingly ignorant turn of rhetoric, and one that emphasizes how out of the bounds of rationality your claims are. Marriage is a social institution with many meanings and definitions throughout history and geography. Pretending it has one designed purpose to the exclusion of others and basing claims upon that premise alone is asinine. We can change the design, we can change the purpose, and we owe it to ourselves and to our country to make that design reflect the liberal and egalitarian foundation of this country.

"There is nothing elegant about that Corvino article that hasn't already been addressed in this thread by proponents of same-sex marriage. I.e., if those other relationships come to pass, that's not the fault of homosexuals. Of course that's true in the most direct sense, but not true at all in the legal sense. "

Well, except that it is true in the legal sense — there is literally no way that the Supreme Court could rule from the questions of law at issue to recognize incestuous same-sex marriages. It is entirely a paranoid flight of fancy on your part.

"But he misses the point because, while he's arguing morality, and that the considerations against homosexuality are different than the considerations against PIB relationships, the Supreme Court won't be asking those questions. The federal courts ask what is the rational basis for your law opposing X? If there is no rational basis for opposing homosexual relationships, then the currently-existing rational bases for opposing PIB relations are weakened terribly, and there is little standing in the way of their mandated recognition in all states, and imbued with the rights attendant upon marriage. "

That's idiotic. The only questionable case would be in your consensual, adult, same-sex incestuous marriage. In polyamory, any number of complications are added by additional parties. In the case of beastiality, it's a fucking dog, dumbass. The cases against either are not weakened at all unless you do the most elaborate question begging.

" Naturally, they will never produce offspring, so there is no risk to the state, and so no reason to reward their unions with the benefits attendant upon marriage. "

This does not follow and begs the question. There are many reasons to confer legal recognition upon marriages outside of the limited question of procreation. Insisting on this as the only basis is myopic masturbation.

And, just to keep harping on it, can you please answer my questions from upthread? You still haven't, and I'd hate to make an incorrect inference based on the blather you've written here.
posted by klangklangston at 3:46 PM on December 13, 2012


"Why keep engaging with him? He does not address our comments in good faith, and he is constantly regurgitating decades-old and long-discredited conservative stereotypes and talking points."

Because I want him to have to acknowledge that he isn't arguing in good faith, and that he's parroting discredited talking points.

And, though I know I obviously don't have to explain this to you, these are real fucking people's real fucking lives that he's blithely reducing in order to kowtow to bigots. It's bullshit, he should know it's bullshit, and I don't want to give him the impression that any of his bullshit is anything but irrational prejudices applied in support of — ostensibly — things he doesn't even believe.

I've been a blithe idiot before, and it helped me get called out for just how offensive and stupid I was being. I hope the same holds here.
posted by klangklangston at 3:51 PM on December 13, 2012


Ah, memories of the Prop 8. trial in 2010:
One of the videos was of a campaign rally from 2008 paid for and simulcast by ProtectMarriage.com that shows what they really believe. As reported to us by Yusef Robb of the American Foundation for Equal Rights and shown at the trial today, the video included the following stunning quotes:
“Then pedophiles would have to be allowed to marry 6-7-8 year olds. The man from Massachusetts who petitioned to marry his horse after marriage was instituted in Massachusetts. He’d have to be allowed to do so. Mothers and sons, sisters and brothers, any, any combination would have to be allowed.”
Of course, no such marriages were allowed in Massachusetts, or any other state where same-sex marriage is legal.
“Second of all, the polygamists are waiting in the wings because if a man can marry a man and a woman can marry a woman based on the fact that you have the right to marry whoever you want to marry, then the polygamists are going to use that exact same argument and they’re probably going to win.”
Opponents of marriage equality love to raise this example, even though it is not what is at issue here. It’s an example of what is often called “moving the goalposts” – shifting the ground from a discussion they might lose (“should same-sex couples be allowed to marry?”) to one they feel they might win, even though it isn’t actually what is at issue. No serious and credible organization supporting same-sex marriage has expressed support for polygamy. This is farcical at best.
“We are seeing the people of Massachusetts being desensitized day by day concerning homosexuality and becoming more and more adjusted to the idea of homosexual marriage being the law of the land and the homosexual agenda becoming more and more of a powerful element in the life of our society.”
Here we see very clearly that to Prop 8 backers, this isn’t about marriage at all. It’s about whether homosexuality is accepted by the public and by the law. They believe that legal recognition of same-sex marriage would make it harder to discriminate against LGBT Americans.

... Rick Jacobs took a moment from his trial liveblogging to offer these comments on the video and quotes:
“This morning’s evidence made the Prop 8 side’s strategy crystal clear — use fear and lies to promote hate. It is horrifying that Prop 8 proponents would compare marriage equality to the 9/11 terrorist attacks and imply that marriage equality will open the door to pedophilia, incest and bestiality.”

“Ron Prentice, Andrew Pugno and their Prop 8 team — with the highly capable and apparently deeply cynical leadership of Frank Schubert — created a permanent campaign to scare voters into believing that same-sex marriage would threaten children, undermine America and lead to every form of illicit behavior imaginable.”

“This evidence is not just a smoking gun. It was an arsenal of incendiary devices directed at the LGBT community and voters. This is how the Prop 8 side won — through fear and lies.”

“Finally, this morning we saw indisputable, documented evidence in the form of emails and videos that Ron Prentice and Protect Marriage coordinated closely and relied upon the Catholic Church, the LDS Church, the Family Research Council, Maggie Gallagher, Brian Brown and the National Organization for Marriage to get Prop. 8 on the ballot and to win through a campaign of lies.”

“Last week, the Supreme Court erased decades of precedent by ruling that corporations have the same rights as people when it comes to speech. Let’s hope that the court will as readily see that LGBT people have at least the same rights as corporations and surely the same rights as other people.”
Looking at these quotes, it’s no wonder why Protect Marriage fought so hard to keep this trial as hidden away from the public as possible. The truth is revealing. The truth is explosive. The truth shows that far from “protecting” families and children, the primary goal of Prop 8 backers was to impose their radical views of society on us, and discriminate against LGBT people in California and across the nation.
posted by ericb at 4:08 PM on December 13, 2012 [2 favorites]


I think I see where the animus is coming from now. To you, the responsible procreation justification for opposite-sex only marriage seems like a post-hoc rationalization of our position once marriage-supporters have been called to the carpet.

In other words, do you think that the only truly true, real reason for excluding homosexuals from marriage is that homosexuality is wrong, therefore homosexuals can't get married? And, as a corollary, that the responsible procreation argument is just something we came up with so as not to get laughed out of a 21st-century federal court? (Honestly, I could see being pissed off at marriage supporters if you think we're arguing solely on the basis that homosexuality is wrong and icky, when heterosexuals have done all they can to abuse and destroy the marriage institution--derail.)

If you think this, that we're arguing in bad faith, just trying to paper over our loathing of homosexuals, then I see where you're coming from--many marriage supporters no doubt have a loathing of homosexuality and the thought of federally-mandated state recognition of homosexual relations.

But that's not the only justification for opposite-sex only marriage. Nor does refuting the moral opposition to homosexuality aspect of some marriage proponents' arguments also refute the responsible procreation justification for opposite-sex only marriage.

Many have tried to refute it and work around it, often with their own set of hypothetical horribles--but what you would require of married people if you can't get your way before the courts is government-supervised child production which, lol, both (1) misses the point of the argument (opposite-sex only marriage isn't designed to ensure lots of babies or any babies at all, it's to ensure that, if they are produced--and they routinely are as the result of opposite sex relationships--then they are produced within the most stable relationship known to man and to social science, that of a biological father and mother) and (2) violates the fundamental-right-of-privacy line of cases your same-sex marriage argument rests upon! See Griswold v. Connecticut and tell me if the government could require marriage licensees to submit regularly, or even once, to fertility testing or periodic childbirths. Not going to happen any more than states are going to be allowed to outlaw contraception, the ruling in Griswold.
posted by resurrexit at 6:30 AM on December 14, 2012


"But really, this all seems like concern trolling, so let me ask some questions: Do you support the freedom to marry for LGBT people? Do you support state money going to religious institutions that discriminate against LGBT people? Does that reflect your values? "

(1) Obviously, no, I don't believe states should be forced to recognize same-sex marriages, though they may certainly do so legislatively or by way of the democratic process, which is why I didn't answer it before--it should be obvious that I'm thread sitting for like three days arguing against several people. If you want to get gay married, work for it within your state or move somewhere where they've got it; this affords other free people, like me, the space we need to live apart in a world where we increasingly and more violently disagree about matters no one disagreed about 100, or even 50, years ago.
(2) No, but for a different reason that's irrelevant to this discussion, which is why I didn't answer it.
(3) The answer to these questions are based on my values, yes.

Please don't derail our discussion based on these answers, I honestly don't see how they're relevant to it.
posted by resurrexit at 6:38 AM on December 14, 2012


I guess one of the answers sort of does change how you might view my positions. I do not categorically oppose a state's citizens' rights to put into law anything they please, subject to the Federal Constitution's guarantee clause. So I'm not here arguing against gay marriage generally, like 'oh the apocalypse will come down on us all if we shall so much as grant it'--just in opposition to mandating gay marriage from the top-down, via judicial fiat.
posted by resurrexit at 6:41 AM on December 14, 2012




"In other words, do you think that the only truly true, real reason for excluding homosexuals from marriage is that homosexuality is wrong, therefore homosexuals can't get married? "

I do not think that there is a true, real reason for excluding LGBT people from marriage. I think all of the "reasons" proffered are irrational, based on wooly thinking and received prejudice. Including yours. I think this is most apparent as you argue past the facts of the cases and dodge questions.

"But that's not the only justification for opposite-sex only marriage. Nor does refuting the moral opposition to homosexuality aspect of some marriage proponents' arguments also refute the responsible procreation justification for opposite-sex only marriage."

No, the responsible procreation argument is quite ably refuted on its own, as it has been here and prior — it is not an argument to exclude, and the supposed benefits of that exclusion cannot rationally be claimed. Intrusive fertility questions of heterosexuals are irrelevant, de facto and de jure, to the way marriage is formulated as an exclusionary institution. It is especially farcical in that it only relies on accidental procreation — planned procreation would have no justification under that rubric either. As LGBT people regularly engage in fertility services and/or adopt, ensuring stability for those families is just as important, and there are no empirical studies to suggest that excluding LGBT people leads to lower out-of-wedlock childbirth.

Obviously, no, I don't believe states should be forced to recognize same-sex marriages, though they may certainly do so legislatively or by way of the democratic process, which is why I didn't answer it before--it should be obvious that I'm thread sitting for like three days arguing against several people. If you want to get gay married, work for it within your state or move somewhere where they've got it; this affords other free people, like me, the space we need to live apart in a world where we increasingly and more violently disagree about matters no one disagreed about 100, or even 50, years ago. "

This doesn't actually answer the question that I asked, but I do appreciate you trying somewhat. It is, still, blithely ridiculous, for many reasons. First is that irrational discrimination has no place in public law — that's what we have churches for. From there on down, it's a series of privilege checks — LGBT people have, statistically, lower incomes and are less able to move; the idea that this is somehow an imposition on "free people" is risible nonsense, as it is not any more than the imposition of interracial marriage was 50 years back (I don't weep for Bob Jones). Frankly, if you don't like it, you're welcome to leave your state or country. But sloppy majoritarianism is a poor way to decide life and death matters for minorities.
posted by klangklangston at 8:51 AM on December 14, 2012 [1 favorite]


Obviously, no, I don't believe states should be forced to recognize same-sex marriages, though they may certainly do so legislatively or by way of the democratic process,

On the one hand, you argue about people being able to marry their dogs or their dads and stable family units and yadda....but if voters want to, oh well! Somehow, if same-sex marriage is legalized via a SCOTUS ruling, that would be terrible because the children! But if it's legalized via the voters, then....the children oh well? Or, bad things won't happen to society for reasons?

You drag out the most absurd (and offensive) tropes about why gay marriage is terrible for society and for heterosexual family-raising, but then you say it just boils down to not wanting it mandated by the courts.

Now I'm really taking this out of my recent activity, because I don't want to make jessamyn give me a timeout.
posted by rtha at 8:57 AM on December 14, 2012 [2 favorites]






Anthony Kennedy's history of support for gay rights:
"The Reagan-appointed justice has pained liberals on many occasions, most recently this summer when he voted to wipe out the Affordable Care Act. But when it comes to gay rights, Kennedy has written passionately in its favor, spearheading the court’s two key rulings for gay equality."
posted by ericb at 1:47 PM on December 14, 2012


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