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A No Go for Homos
July 7, 2006 1:20 AM Subscribe

We hold that the New York Constitution does not compel recognition of marriages between members of the same sex. By a 4 to 2 margin, the New York Court of Appeals, New York's highest court, upheld (70 page pdf) the state's Domestic Relations law that bars same-sex couples from getting married in New York and denying same-sex couples the hundreds of family protections provided to married couples. The court accepted the justifications advanced by Mayor Michael Bloomberg and Attorney General Eliot Spitzer for the state law barring marriage by same-sex couples. "Pointing out that stable relationships between parents are important for children, that straight couples can conceive children by 'accident,' and that gay couples can only have children with advance planning, Bloomberg and Spitzer argued that straight couples need the stability of marriage, but gay couples do not." The ruling was denounced by the ACLU, criticized by Howard Dean as based on "outdated and bigoted notions about families," and applauded by the Marriage Law Foundation pleased by the "superb and straightforward legal analysis." Background from NPR.
posted by three blind mice (104 comments total)

My adoptive parents were a man and a woman, and they were drunks, drug addicts, and losers who beat me. Love makes a family, not gender. I'd rather have had two men or women who cared than two self-absorbed "normal" parents. This ruling is bigotry disguised as concern.
posted by SaintCynr at 1:31 AM on July 7, 2006 [1 favorite]

As Dan Savage would say, thanks for sharing Saint.
posted by [expletive deleted] at 1:51 AM on July 7, 2006

I believe it was Dudley Moore, the comedian, who said, and I'm paraphrasing very loosely here, that he believed world wars would end and peace would set in if world leaders would all join each other in a large room with a large bowl of oil and take off their clothes. I don't think he was thinking of motor oil and I don't think he was thinking hetero only massage partners. I think his philosophy could be helpful for Bloomberg and Spitzer. Probably a few others too. Ah, that Utopian fantasy again. Where did I put that. I know it's around here somewhere.

Or maybe it would just make for good porn. Strike that, bad porn. Nevermind.
posted by Sir BoBoMonkey Pooflinger Esquire III at 1:53 AM on July 7, 2006

Seriously, though, I wonder what half the population of New York feels about their court jesters right now? But then again, animals generally get testy when they know they are in a corner and it's just a matter of time before they get chewed up.
posted by Sir BoBoMonkey Pooflinger Esquire III at 1:58 AM on July 7, 2006

Per amberglow in yesterday's Boston thread:

"I am confident that future generations will look back on today's decision as an unfortunate misstep." -- Chief Judge Kaye

More passages from the dissent.
posted by salvia at 1:59 AM on July 7, 2006

Marriage is highly overrated anyhow.
posted by nightchrome at 2:01 AM on July 7, 2006

It wasn't that long ago that women got the right to vote, as well as half the laws on the books...came as a result of long struggles against those in power, and/or the majority opinion. Things change, this will too, but not before a few wigs burn. And as history shows us, many have been burned. Maybe I shouldn't be in the blue this late at night. Monkey speak in gibberiddles.
posted by Sir BoBoMonkey Pooflinger Esquire III at 2:03 AM on July 7, 2006

So a (the?) primary reason for straight marriage being legal is that the couple might conceive by accident? Whaaa?
posted by terpsichoria at 2:59 AM on July 7, 2006

While the USA still struggles with homosexuality most european countries allow gay marriages legally and have adopted their laws accordingly.

Why is America almost as homophobe and backward in that respect as many muslim countries?
posted by homodigitalis at 3:02 AM on July 7, 2006

Um, what are you talking about, homodigitalis? The only European countries with same-sex marriage on the statute books at an equal footing with heterosexual marriage are the Netherlands, Belgium and Spain.
posted by jack_mo at 3:45 AM on July 7, 2006

The only European countries with same-sex marriage on the statute books at an equal footing with heterosexual marriage are the Netherlands, Belgium and Spain.

Since 1995, same-sex couples are recognized by law as "registered partners" in Sweden afforded the same rights and privileges extended to any other couple.

There is still, however, a debate if same-sex couples should be able to be married in the Swedish church, but since few people in Sweden bother with the church - or with the quiant idea marriage - this is largely symbolic.
posted by three blind mice at 4:11 AM on July 7, 2006

To my reading, the court was just saying there is nothing in the current law to compel the government to recognize gay marriage. That's not quite the same as barring it outright, it just puts the ball back in the legislative field. Had they done more, they would have been accused of being activist judges and fuelled the hard right's fire. Instead, they said it's a matter that should be decided by the state, not the courts. I'm sure the state government was hoping to get someone else to make this decision for them (for or against gay marriage); now they're actually compelled to stand up and make their views known.
posted by GhostintheMachine at 4:37 AM on July 7, 2006

Dupe, not that you could be blamed for missing it the first time.
posted by Civil_Disobedient at 4:40 AM on July 7, 2006

To my reading, the court was just saying there is nothing in the current law to compel the government to recognize gay marriage.

I didn't read the decision, but every news piece I saw covering the decision mentioned some bullshit about "kids should be raised by a male-female couple," as if that has anything to do with the issue. Would you say, having read the decision, that this is an inaccurate representation of the majority's reasoning?

I ask because I fully understand that even if one supports gay marriage, one can agree with the argument that there might be nothing in a state constitution to require it. But I keep hearing that the majority said the decision had to do with THINK OF THE CHILDREN! Which is just awful.
posted by rxrfrx at 4:41 AM on July 7, 2006

I didn't read the decision, but every news piece I saw covering the decision mentioned some bullshit about "kids should be raised by a male-female couple," as if that has anything to do with the issue.

The thing is, the New York court did what they were supposed to do — left their biases about what "should" happen aside and just interpreted the constitution.

I'm bummed at the court decision. But I'm thrilled at the reasoning behind it, which is pretty straightforward and free from bigotry. And yeah, it leaves the NY state legislature perfectly free to write gay marriage into their laws, which seems unlikely now but could easily happen five or ten years from now if things move in a good direction.
posted by nebulawindphone at 4:50 AM on July 7, 2006

> Why is America almost as homophobe and backward in that respect as many muslim countries?

One notes that the birth rate in the US is still within shouting distance of those of Muslim nations, while those of all old-European nations are vanishingly small and heading for zero (except Ireland. Go, the Irish!) That's why.

America's attitude remains what it is in large part because we have the dreadful death spiral of the natives of the--heh--advanced nations of Europe before us as an object-lesson. There's no use arguing about homosexual marriage; it's a question that will settle itself in a vary few generations. At the end of this century the US will be very much as it is now, with homosexuals tolerated but not encouraged, and will be facing a solidly Moslem continental Europe where homosexuals are stoned. I can't tell you how amusing it is to watch this take place, all the while listening to the obblgato IT'S NOT HAPPENING! IT'S NOT HAPPENING! chant from Europe.

posted by jfuller at 4:52 AM on July 7, 2006

I'm sure the state government was hoping to get someone else to make this decision for them (for or against gay marriage); now they're actually compelled to stand up and make their views known.

No, no. Bigotry is the only possible explanation.
posted by Kwantsar at 4:54 AM on July 7, 2006

GhostintheMachine - I'm Canadian, not American, so please forgive my ignorance, but is there anything in the American constitution which would extend protection against discrimination on grounds of sex? (perhaps the 14th amendment?) In Canada, the supreme court just said it's not constitutional to discriminate by gender/sex, which means you can't stop two consenting otherwise all legal adults from marrying just because of their sex.
posted by jb at 4:54 AM on July 7, 2006

I understand the drive to acieve a perceived equality through having the right to marry. And I also disclose that I am married. But I wonder if the fight would not be better served in achieving access to all of the affordances of marriage without all of the religious mumbo-jumbo that accompanies it and serves as a huge basis of resistance to same-sex marriage by religio-heteralists.

The name does matter because law is shaped by words. If straight couples are called "married" and gay are called "partnered", they could start out with all the same legal rights, but what's to stop/hinder a subsequent government from changing that? They could just say, "this new tax break goes to married couples, not civil partnerships", and already it's unequal. Or health care companies could restrict benefits to marriages, not civil partnerships. Whereas if gay couples are "married", then they cannot be cut out of any rights without affecting the rights of all straight married couples.

If the government wanted make ALL marriages be called civil partnerships (as far as the government was concerned) and let the name "marriage" (or handfasting or shacking up) be just used socially/religiously, I'd have no problem with that. But it's dangerous to create a different status - even if they appear to be the same, history has shown that separate rarely equals equal, especially when a minority is involved.

As for the religious/cultural side: most gay couples who wish to be married want to for the same reason as straight couples - because they wish to make the serious lifetime committment to one other people that our society calls "marriage"; some churches wish to have the freedom to marry their gay members. Some people are happy living together, content to know that they are committed without the societal ritual, but other people (including my husband and I) want that ritual, and the name, because it does mean a lot to our society. And I want my gay friends to be able to participate in that institution and have the same social recognition and legitimacy for their relationship that I enjoy. I don't like living in a position of priviledge.

----------

as an addendum to my previous question on the constitution: is there a religious freedom side to the argument? In Canada, the first gay marriages (including an unrecognised marriage in the 1970s) were conducted by churches who wished to have the religious freedom to marry their gay members. Isn't denying them that infringing on religious freedom without adequate grounds? (seeing as there is no coercion or abuse).
posted by jb at 5:07 AM on July 7, 2006

I find it interesting that Eliot Spitzer argued the case against gay marriage as Attorney General, but has made comments for gay marriage as a candidate for NY Governor.
posted by scottreynen at 5:15 AM on July 7, 2006

jack_mo: "Um, what are you talking about, homodigitalis? The only European countries with same-sex marriage on the statute books at an equal footing with heterosexual marriage are the Netherlands, Belgium and Spain."

Mostly incorrect with regards to Germany. We have the Gesetz über die Eingetragene Lebenspartnerschaft which basically creates equal footing for legal marriages between same-sex partners. As I mentioned in another thread, marriage in Germany is separated into the legal aspect (which is covered by this law) and which is a contract in the eyes of the state and into the religious aspect which is covered by the church of your choice but which has no legal bearing.
I keep wondering why Americans want to keep these two clearly separate aspects of the institution "marriage" conflated into one entity (which means that religious reasons can be brought against a legal matter).
And as to the reasoning that marriage provides much-needed stability for a heterosexual couple: does that mean that divorces will now be made illegal if a pregnancy could possibly occur?
posted by PontifexPrimus at 5:16 AM on July 7, 2006

nebulawindphone: decision free from bigotry ??? You must have read a different decision to the one I read.

The primary reason that the decision was made was because "The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father." In the detail that follows, the judgement essentially says that there needs to be long term scientific evidence that same sex parents are no worse than opposite sex parents before the constitution would ensure same sex marriage was allowed. This is of course complete bollocks - on this basis, any group that can't prove that they aren't ess good parents could be banned from getting married, e.g. poor people, the mentally ill, ex offenders, etc. Basically, if you can categorise your enemy into a group that can't prove that they aren't worse parents you can ban them from marrying - I'd like to see politicians prove that they aren't worse parents than non politicians. So they've come up with a fatuous reason for discriminating against teh gays, so that they can claim to be objective, without thinking about the logical implications.
posted by daveg at 5:37 AM on July 7, 2006

Gay people: move to Canada already.
posted by chunking express at 5:43 AM on July 7, 2006

I'm bummed at the court decision. But I'm thrilled at the reasoning behind it, which is pretty straightforward and free from bigotry. And yeah, it leaves the NY state legislature perfectly free to write gay marriage into their laws, which seems unlikely now but could easily happen five or ten years from now if things move in a good direction.

Thrilled nebulawindphone? Go back and read the decision. And this time consider it in the light of civil rights which is the ONLY proper light the government of the United States should see this issue. Would you be as comfortable writing..

...it leaves the NY state legislature perfectly free to write ~~gay marriage~~ civil rights into their laws, which seems unlikely now but could easily happen five or ten years from now if things move in a good direction.

If not for "activist judges" overriding the will of the people, black americans would still be living under Jim Crow. America is not - and has never been - a pure democracy; it is a constitutional democratic republic.

/Sorry for the double post.
posted by three blind mice at 5:57 AM on July 7, 2006

On a related note: 10 reasons gay marriage will ruin society.
posted by scottreynen at 5:59 AM on July 7, 2006

I keep wondering why Americans want to keep these two clearly separate aspects of the institution "marriage" conflated into one entity

Some of our favorite arguements here in the states are over what our "Founding Father's" meaning and intent was when drafting the Constitution, Bill of Rights, etc. And a focal point of that debate right now is how secular our country should be.

I've no idea how the more rabid right wingers would react if we were to push for a real seperation between civil unions and religious marriage. And I've no idea why the gay rights movement hasn't made such a push. It seems to fall into the framing that the wingers intend, and gives the impression that "the gays" want the government to coerce the churches into recognizing same sex marriages.
posted by kableh at 6:13 AM on July 7, 2006

Gay New Yorker here. The day before the decision came out I listened to the webcast of the oral arguments (see the Court of Appeals webpage cited above). I have to admit that the arguments from counsel for the gay plaitiffs sounded a bit shaky.

If you watch the two hour webcast, you'll see that the justices aren't hostile to the issue of gay marriage. In fact, I saw several occasions of justices trying to throw the gay side a bone via "softball" questions that they asked.

The problem is that the justices were looking for some defensible basis in existing law to sanction gay marriage. And they couldn't find it. While I would have preferred to see the decision go the other way, I don't think it's right to blame the justices of the Court of Appeals (NY's highest court).

The bottom line is the legislature SHOULD be the ones to fix the law to alow gay marriage. Oy. They can barely agree on a budget and you don't see politicians taking a stand much of anywhere across the U.S. Swell.
posted by bim at 6:26 AM on July 7, 2006

And yes, Mr. Spitzer is trying to speak out of both sides of his mouth. Hillary too. And I couldn't beleive how crappy the lawyer for the A.G. seemed. He didn't even seem prepared.
posted by bim at 6:29 AM on July 7, 2006

bim: I completely agree. I just read up to Article IV, Section A and it reads to me that they did everything they could not to interpret a Constitutional ban on it while giving the Legislature myriad ways to relegislate. It read as quite an agile decision to me, however regrettable.
posted by Captaintripps at 6:40 AM on July 7, 2006

it's a question that will settle itself in a vary few generations

that's what those nice Dixie gentlemen were saying of the Negroes, in a not so distant past. one day the irony will cease to escape you, hopefully.

with homosexuals tolerated

well, that's very generous, massa

I can't tell you how amusing it is to watch this take place, all the while listening to the obblgato IT'S NOT HAPPENING! IT'S NOT HAPPENING! chant from Europe.

what's even even more amusing is watching the Confederate bigots foam at the mouth for the "we have free health care and workers' rights and public schools where metal detectors aren't needed, and even actual public transport" European chant. said bigots -- unlike their reasonable neighbors up in the Union -- then feel compelled to make up weird, racist scenarios where dark-skinned unbelievers take over Europe raping the white women and converting their men to Islam.
posted by matteo at 6:42 AM on July 7, 2006

They created a rationale/test and then they applied it to gay couples but not straight ones--senior citizens can marry but they can't procreate, people on death row without visitation rights can marry but can't procreate, infertile people can marry but not procreate...they said it would be an undue burden to apply the procreation rationale to straight people, but they think it's ok to do so to others--it's a crock of shit.

They're using biology to deny rights, and Judge Kaye is exactly right in her dissent. And there are many families in NY with children and without protections that children in straight families have. And, this may also close adoption and foster care to gay couples/singles too, due to the biased language. i've read.

I've also read that marriage is an individual right and not a couple/family thing in the law--if that's so, then the act of procreation should not have entered into the decision. People procreate every single day without getting married. People procreate all the time, and always have--without marriage.
posted by amberglow at 6:44 AM on July 7, 2006 [1 favorite]

And i can't tell you how disgusted i am that this is the approach the city and state used--a state where the majority are in favor.
posted by amberglow at 6:50 AM on July 7, 2006

well, that's very generous, massa

Now that's rich.
posted by Kwantsar at 6:51 AM on July 7, 2006

3bm: America is not - and has never been - a pure democracy; it is a constitutional democratic republic.

Love this quote:

"Democracy is two wolves and a lamb voting on what to have for lunch." -- Ben Franklin
posted by LordSludge at 6:51 AM on July 7, 2006 [1 favorite]

@jack_mo:

The only European countries with same-sex marriage on the statute books at an equal footing with heterosexual marriage are the Netherlands, Belgium and Spain.

The Netherlands and Belgium give full marriage rights to same-sex couples. Varying degrees of legal recognition already have been given to homosexual couples in France, Germany, Finland, Sweden, Norway, Denmark and Iceland

http://biblia.com/sex/gay.htm

See also:

http://en.wikipedia.org/wiki/Same-sex_marriage

I am no legal expert and I can tell the differences of the various forms of civil unions around here. But IMHO it is a fact that most of Europe and especially nordic countries are nicer places for Gay people then the US.
posted by homodigitalis at 6:52 AM on July 7, 2006 [1 favorite]

You have to wonder what could be achieved by governments of all stripes if they put all this manpower and expense to fight, you know, actual problems instead of mounting these expensive and intensive legal challenges to make sure that some of their constituents are denied basic rights.

History will not be kind to our times.
posted by clevershark at 6:59 AM on July 7, 2006

So, shame on Bloomers and Spitzer.
posted by clevershark at 7:00 AM on July 7, 2006

on Dean's reaction but his omission of mentioning any goals anywhere in the country to help fight this shit, and this: ... Just this week the American Academy of Pediatrics issued a report on how state-sanctioned discrimination against same-sex couples harms the children in their care.... Which seems like it creates a catch-22--state harms children by denying rights, which allows the state to deny rights.
posted by amberglow at 7:02 AM on July 7, 2006

What get's to me is how the arguments against gay-marriage are so similar in tone in logic to, say, the arguments against interracial marriage.
That is, they discount basic human dignity and rights and make up a series of pseudo-utilitarian arguments "for the greater good".
I puke in their general direction. I hope everybody's writing down the names of these pusilanimous bigots, so in a few years(or decades), when society has advanced, they can recieve the public scorn they so richly deserve.
posted by signal at 7:05 AM on July 7, 2006 [1 favorite]

@jfuller:

... facing a solidly Moslem continental Europe where homosexuals are stoned ...

That's rubbish.

There was recently a long article in the Economist about the whole Europe & Muslims issue. Too bad it isn't available on their site.

www.economist.com

The overall points of the article:

* there is no coherent muslim front in Europe, but different nationalities with different communities (Turks in Germany are different from Pakistanis in the UK etc.)

* the overall number of Muslims in the EU is relativly low

wikipedia on Muslims_in_Europe

* not all Muslims are opposed to the EU

* not all Muslims are longing for the old Caliphate

Wikipedia on Caliphate

* Integration faces different issues in different EU nations, so there is not one single problem, but many variations

So are Muslims are going to take over Europe? Of course not. Will there be more problems with Integration - yes. But it won't be the end of the Occident.
posted by homodigitalis at 7:08 AM on July 7, 2006

Varying degrees of legal recognition already have been given to homosexual couples in France, Germany, Finland, Sweden, Norway, Denmark and Iceland

And a good few more countries. My point was that the Netherlands, Belgium and Spain are the only ones to put homo- and heterosexual marriage on an equal footing. Nitpicking, maybe, but I think that in creating civil unions for gay people with less rights under the law than those afforded to straight people who marry, the various European countries are still kow-towing to the homophobes. So the situation is better in much of Europe than the US (except Massachusetts), but it's not as if we're all done with the issue on this side of the pond.

jfuller said 'I can't tell you how amusing it is to watch this take place, all the while listening to the obblgato IT'S NOT HAPPENING! IT'S NOT HAPPENING! chant from Europe.'

What on earth are you talking about jfuller? No one is even chanting 'It's not happening'. Mostly because, er, it's really not happening. If it was happening, those men wouldn't have blown themselves up on London buses and trains a year ago today, would they? They'd've just waited a few years for the imposition of Sharia law on European nations that you predict to kick in. Idiot.
posted by jack_mo at 7:10 AM on July 7, 2006

they mention that, signal, and say the long documented history of racism is why it's different and that we haven't suffered enough to matter, in essence. (page 9ish)--... if we agreed with the plaintiffs that it is comparable to the restriction in Loving v Virginia (388 US 1 [1967]), a prohibition on interracial marriage that was plainly "designed to maintain White Supremacy" (id. at 11) -- we would hold it invalid, no matter how long its history. As the dissent points out, a long and shameful history of racism lay behind the kind of statute invalidated in Loving. But the historical background of Loving is different from the history underlying this case. Racism has been recognized for centuries -- at first by a few people, and later by many more -- as a revolting moral evil. This country fought a civil war to eliminate racism's worst manifestation, slavery, and passed three constitutional amendments to eliminate that curse and its vestiges. Loving was part of the civil rights revolution of the 1950's and 1960's, the triumph of a cause for which many heroes and many ordinary people had struggled since our nation began. It is true that there has been serious injustice in the treatment of homosexuals also, a wrong that has been widely recognized only in the relatively recent past, and one our Legislature tried to address when it enacted the Sexual Orientation Non-Discrimination Act four years ago (L 2002, ch 2). But the traditional definition of marriage is not merely a byproduct of historical injustice. Its history is of a different kind. The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude.
IV Our conclusion that there is a rational basis for limiting marriage to opposite-sex couples leads us to hold that that limitation is valid under the New York Due Process and Equal Protection Clauses, and that any expansion of the traditional definition of marriage should come from the Legislature. ...
posted by amberglow at 7:11 AM on July 7, 2006 [1 favorite]

Yesterday, the Georgia Supreme Court also upheld a referendum banning on same-sex marriages, which also denies legal protections to partners of a same-sex civil union.
posted by ijoshua at 7:12 AM on July 7, 2006

We just have to wait until discrimination against us is seen as "as a revolting moral evil" for a few hundred years or so, i guess--an appalling and wholly unjust rationale.
posted by amberglow at 7:14 AM on July 7, 2006

amberglow: like I said: "pusilanimous bigots".
posted by signal at 7:15 AM on July 7, 2006

Wait, so let me get this straight. Bloomberg and Spitzer are arguing that gay families are so much more inherently stable than straight ones (because they'll never have a family by "accident"), that gays don't need marriage?

Discrimination as a backhanded compliment? Um, thanks?
posted by schroedinger at 7:24 AM on July 7, 2006

and this part: But the traditional definition of marriage is not merely a byproduct of historical injustice. Its history is of a different kind. The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex.

is not true at all, and the state involvement in it and laws about it change all the time--This is a list that disproves much of what the court used as rationale--The History of Marriage as an Institution
posted by amberglow at 7:28 AM on July 7, 2006 [1 favorite]

some things I don't quite understand...

what was the reason this was in front of the new york supreme court? I'm having trouble finding that info. Was there an organization suing to have the law changed overturned as being unconstitutional?

can someone with a decent understanding of law tell me whether the new york state constitution really does protect this godawful law?

if it does, then shouldn't the focus be on getting the constitution ammended? just sayin'.

don't get me wrong. this sucks. but where the constitution of the united states of america DID make the jim crow laws unconstitutional, the new york constitution may not for the gay marriage ban. and it required an ammendment for the US constitution to finally protect the rights of blacks. may be the same thing here.
posted by shmegegge at 7:39 AM on July 7, 2006

4 cases were consolidated (representing 44 couples in total, i think), shmegegge, and went to the court as one case.

According to the judges, it's allowed to discriminate against us in marriage, because they said so. We'll see if that's true. The Constitution doesn't need to be amended to allow it, i don't think. This decision just needs to be overturned by a higher court or something.

Scalia himself in the Supreme Court said during Lawrence that marriage would be allowed, so we'll see when cases finally get there (i don't have much hope)

Watch NJ--they have a case on now about the same thing. This may have killed it.
posted by amberglow at 8:47 AM on July 7, 2006

most european countries allow gay marriages legally and have adopted their laws accordingly.

In fact, many Eastern European countries, including Poland and Latvia, outlaw not only same-sex marriage but public gay demonstrations, which are subject to infiltration by (sometimes) government-sanctioned thugs bent on violence.
posted by blucevalo at 8:48 AM on July 7, 2006

I wish that I could eloquently and intelligently dicuss things like this, but the truth is, I can't. I'm completely fed up with the obvious hate that underlies decisions like this. I'm completely disgusted with the segment of the country that continues to support measures like this. I'm sad that no progress seems to be made. And for what end? I mean, I'm sure we've all discussed this to death and all realize that decisions like this are silly and unnecessary and detrimental, but things don't change. I'm fucking sick of it.
posted by nuclear_soup at 8:58 AM on July 7, 2006

Nitpicking, maybe, but I think that in creating civil unions for gay people with less rights under the law than those afforded to straight people who marry, the various European countries are still kow-towing to the homophobes.

Progress is progress. At least Europe isn't slowly becoming a Christian fundamentalist autocracy, and its public aren't constantly distracted with false moral dilemmas, as is happening in the United States. This is definite step backwards for civil rights — for straight people who value their own freedoms — as much as GLBT folks.
posted by Mr. Six at 9:00 AM on July 7, 2006

There is simply nothing else to say but that this country will remain sick to its soul until it recognizes human and civil rights for all people.
posted by Divine_Wino at 9:02 AM on July 7, 2006

I'm with nuclear soup.
posted by agregoli at 9:02 AM on July 7, 2006

But I wonder if the fight would not be better served in achieving access to all of the affordances of marriage without all of the religious mumbo-jumbo that accompanies it and serves as a huge basis of resistance to same-sex marriage by religio-heteralists.

That is, I think that arguments for civil partnerships that protect property, inheritence, and familial rights such as adoption and hospital visitation can be more successfully argued and achieved, and then once achieved the barriers to fully recognized marriage will fall.

I agree. As a gay man, it matters much more to me to be able to visit my partner in the hospital if he's sick or incapacitated, to have domsetic partnership benefits, and to be able to settle estate and inheritance matters without jumping through hoops to do it.

The strategy of the fundamentalists is to use opposing same-sex marriage (an emotionally fraught issue that mobilizes money and activism) as a Trojan horse to eliminate anything that resembles marriage, including domestic partnership. For example, a ballot initative that recently qualified in California for November would do just that.

The text includes the following: "The People of California have a compelling responsibility to protect the essence of marriage by ensuring that the civil institution of marriage between one man and one woman is not abolished or diminished. The People find that marriage between one man and one woman is diminished when government decreases statutory rights, incidents, or employee benefits of marriage shared by one man and one woman, or requires private entities to offer or provide rights, incidents, or benefits of marriage to unmarried individuals, or when government bestows statutory rights, incidents, or employee benefits of marriage on unmarried individuals."
posted by blucevalo at 9:11 AM on July 7, 2006

I heard gay people are a threat to national security, that's why they can't get married.
posted by chunking express at 9:15 AM on July 7, 2006

Since God died of a heart attack in 1961 gay marriage has been pretty much inevitable. This is a temporary setback.
posted by I Foody at 9:37 AM on July 7, 2006

At least Europe isn't slowly becoming a Christian fundamentalist autocracy, and its public aren't constantly distracted with false moral dilemmas, as is happening in the United States.

What's really ironic Mr. Six is that many European countries, including until recently Sweden, have or have had an official religion and a state-run church. If you really want to destroy an institution, put the government in charge of it.

Perhaps the x-tian right should be allowed to prevail and establish the Christian church as THE official U.S. government church. Let Congress write the Bible, put FEMA, let Haliburton build the churches, and let FEMA run it. In less than a generation, the nation will finally become as secular as Godless countries of Europe and the scourge of religion will be purged from the body politic once and for all.
posted by three blind mice at 9:39 AM on July 7, 2006

I think many of you are overreacting to describe this decision as "bigoted." The decision itself may be supporting the bigotry of the law, but it only reads as bigoted to me to the extent that it tries to understand the basis for that law. The overall language I find to be rather understanding of the gays' position, saying on multiple occasions that they might be right where the legislature is wrong. The decision only establishes that there is some reasonable basis for the legislature to establish marriage as between a man and a woman.

That is, the court is saying that while there is no proof that children fair better in heterosexual households, there is not enough proof that they do not to overrule the legislature's belief that they do.

Based on this, and the holding that same-sex marriage is not a fundamental right, the court rightly held that the law is not subject to a high level of scrutiny. This part is crucial for distinguishing gay marriage cases from Loving v. Virginia.

In Loving the issue was the right to marry, which has been held as fundamental. In this case, the issue is the right to marry someone of the same sex, which is quite different. Anti-miscegenation laws are different because they restrict the broader, more fundamental "right to marry" rather than the narrower "right to marry someone of the same sex." Since this second right is neither required for the existence of "ordered liberty" nor a right which is strongly attested to in our history, the court deemed it not fundamental.

The courts have also held, however, that while history is a major part of determining if a right is "fundamental", groups once excluded from that right can not continue to be denied it on the basis of their prior exclusion. The obvious question that follows is whether homosexuals are being denied their fundamental right to marry under the current law, whether the right to marry someone of the same sex is part of the fundamental right to marry. It is important to note that there is no discrimination in the current law, all people, gay or straight are free to marry an opposite sex person of their choosing. Thus, it would seem that the state is not denying anyone the right to partake of a fundamental liberty, but rather, they are applying the traditional definition of what that liberty is to all persons.

That might not be satisfying to anyone, but I believe it provides a fairly accurate view of how the court was thinking, and I'm inclined to agree with them. That being said, I think New York and all states would be advised to revise their law and adopt some sort of legal protection for committed homosexual relationships. The current arrangement is not terribly just, especially when it comes to issues of estates, custody issues, etc. These injustices, however, do not rise to the level of a violation of basic, fundamental liberty and treating them as such would be a major mistake.
posted by Bulgaroktonos at 9:59 AM on July 7, 2006

.
posted by Hildegarde at 10:19 AM on July 7, 2006

not an attorney, i rarely take the word of press when it comes to interpreting a decision...legal cases often deal with very specific issues that are too subtle for easy explanation, and the media tend to paint it with too-bold strokes...

my idea on gay progress is basically that it can be slowed but not stopped, and some measure of bigotry gets phased out as the old hypocrites die off...

as for marriage, i'm more of the feeling that the right to marry is not fundamental for straight people or gay people...the government should butt out altogether...gay marriage would be nice, but i would sooner argue that the legal/financial/social benefits to married couples are the true 'special rights' gays are accused of trying to grab, and in essence constitute a form of affirmative action that remedies a problem that does not exist...if there are benefits we feel should be guaranteed based on the relationship of one person to another, they should be available to everyone--straight, gay, or single--in the form of next-of-kin contracts...
posted by troybob at 10:21 AM on July 7, 2006

The current arrangement is not terribly just, especially when it comes to issues of estates, custody issues, etc. These injustices, however, do not rise to the level of a violation of basic, fundamental liberty and treating them as such would be a major mistake.

If these injustices don't "rise to the level of a violation of basic, fundamental liberty," I'd be hard-pressed to know what injustice does. I can't visit my partner in the hospital if he's incapacitated because under the law I'm not "family." If he dies, I can't decide whether my partner gets a cremation (according to his wishes) because his fundamentalist parents will make sure that I'm shoved out of the picture so they can give him a proper Christian coffin.

If those are not basic liberties, i.e., liberties that folks who can legally get married take for granted, please enlighten me as to what constitutes liberty, because the dictionary is starting to lose all meaning here.
posted by blucevalo at 10:28 AM on July 7, 2006 [1 favorite]

Attention all AMERIGAYS:

Canada's economy is booming, and we are having a labour shortage for both knowledge-workers and labourers.

MOVE HERE - WE NEED YOU!

Here's your ticket in:
"In 1994, the Supreme Court of Canada ruled that gays and lesbians could apply for refugee status based on persecution for their sexual orientation."

---source: Wikipedia
posted by SSinVan at 10:57 AM on July 7, 2006

Canada is awesome. My partner and I got a marriage license in Toronto last year.

I wish I were as enthusiastic as you, SSinVan. I'd love to move to Canada if I knew that I and my partner could get jobs in our chosen professions and eventually become citizens. I've looked, carefully, and done research, and I've found little evidence to support either possibility.
posted by blucevalo at 11:03 AM on July 7, 2006

Re Spitzer, he isn't talking out of both sides of his mouth. As Attorney-General, it's his job to defend the state's laws, no matter how heinously stupid he knows they are. He is entitled to hold a different view personally without being accused of flip-flopping or playing both sides of the street, IMO.

As a Californian, I don't think the anti-domestic partner law has much of a chance of passing. It will have a broad coalition against it, including, I suspect, both gubernatorial candidates. You can frame a definition-of-marriage law as "defense of marriage" if you try hard enough, but there's really no way to defend this sort of proposal as anything but out and out bigotry, and I think most people will see through it.

It's shamelessly easy to get *anything* on the ballot here. A parental notification law went down to defeat by a wide margin in June, but a nearly identical proposition is going to be on the ballot again in November.
posted by whitearrow at 11:16 AM on July 7, 2006

PontifexPrimus: I keep wondering why Americans want to keep these two clearly separate aspects of the institution "marriage" conflated into one entity

None of what we're discussing has any bearing on religious marriage. Churches do not need permission from the government to marry people in a religious ceremony. Nor can the government prevent churches from marrying people in a religious ceremony.

It's just convenient for all the reactionary bigots that we use the same word for both a religious institution and a secular legal status. Conflation makes it easier to angry up the blood.

bim: The bottom line is the legislature SHOULD be the ones to fix the law to alow gay marriage.

I like to think of "equal protection" as an absolute. The lesgislature (any legislature) is too eager to implement the tyranny of the majority in exchange for guaranteed incumbency. The courts are our last best hope for upholding the rights of the minority.

clevershark: You have to wonder what could be achieved by governments of all stripes if they put all this manpower and expense to fight, you know, actual problems

That will never happen because the it does not benefit those in power. Addressing "actual problems" would force politicians to spend precious resources on something other than their next election bid.
posted by oncogenesis at 11:18 AM on July 7, 2006

Man, I hang around with too many liberals.
I was talking this over with the rest of the editorial board for my college paper (where most are right/center democrats), especially in light of the American Family Association fuckers trying to get same-sex benefits removed from Michigan State University, and I got back a chorus of circular "marriage is between a man and a woman because that's what the word means" logic.
It bugs me on a weird level, though I'm neither gay nor married, that otherwise rational people have this bizarro hang-up about gays getting married. What the fuck? I can't think of any compelling reason not to let them, and standing on tradition is moronic.
The jfuller has presented an excellent argument for why we should make sure that Muslims can't marry.
posted by klangklangston at 11:21 AM on July 7, 2006

Since most Muslims are gay, it all works out.
posted by sonofsamiam at 11:23 AM on July 7, 2006

I'm not sure that the U.S. Supreme Court will ever go the distance and find that states are required by the Constitution to give gays full marriage rights--although it should--but I do think that it will probably conclude that DOMA violates the Full Faith & Credit clause. Once that happens, you only need one state to actually perform the marriages, and others will be required to recognize them as legally binding.

Doesn't denying marriage to gay people also violate the Equal Protection Clause? It seems to me that, between the 14th Amendment and the Supreme Court defining marriage as one of the "basic civil rights of man" in Loving v. Virginia, that they will eventually have to rule that people are entitled to same-sex marriage.

However, in Lawrence v. Texas, the Supreme Court said, the decision "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." I don't see how that squares with the 14th Amendment and Loving v. Virginia, though.
posted by kirkaracha at 11:35 AM on July 7, 2006

As a Californian, I don't think the anti-domestic partner law has much of a chance of passing. It will have a broad coalition against it, including, I suspect, both gubernatorial candidates.

whitearrow, as a fellow Californian in a domestic partnership, I hope you're right.

the American Family Association fuckers

klangklangston, as an ex-Michigan resident, I thank you for calling a spade a spade.

The AFA is a blight on that state as far as I'm concerned. Their stock in trade is circular reasoning.
posted by blucevalo at 11:41 AM on July 7, 2006

Doesn't denying marriage to gay people also violate the Equal Protection Clause? It seems to me that, between the 14th Amendment and the Supreme Court defining marriage as one of the "basic civil rights of man" in Loving v. Virginia, that they will eventually have to rule that people are entitled to same-sex marriage.

The Equal Protection Clause only protects certain people, so-called "suspect classes", such as blacks or other ethnic minorities.

Gays and lesbians do not enjoy equal protection under the law, the way that straight people of various ethnicities do.

It is legal in the United States to discriminate on the basis of sexual orientation.
posted by Blazecock Pileon at 12:16 PM on July 7, 2006

I'm not sure that the U.S. Supreme Court will ever go the distance and find that states are required by the Constitution to give gays full marriage rights--although it should--but I do think that it will probably conclude that DOMA violates the Full Faith & Credit clause. Once that happens, you only need one state to actually perform the marriages, and others will be required to recognize them as legally binding.

There are cases on the way up concerning Mass couples who married there and moved out of state. I don't know if the court will take them tho. It's clearly a violation of Full Faith and Credit except that some states have already passed laws saying they won't honor it if it's gay marriages.
posted by amberglow at 12:19 PM on July 7, 2006

And many new State Constitutional Amendments explicitly are worded like California's proposed thing--stating nothing even remotely similar to a marriage right or benefit is allowed. (that knocks out full faith and credit until the Supremes rule otherwise)

Canada looks better and better each day, SSinVan -- it's clear that i'll be dead before there are changes here---we're going backwards very fast.
posted by amberglow at 12:23 PM on July 7, 2006

my idea on gay progress is basically that it can be slowed but not stopped,

I think troybob's on the right track. While the battles for legal equality have been saddeningly only fitfully succesfully, socially, acceptance for homosexuality has been increasing with just about everybody except hardcore fundies and people with serious issues. Right now it's at a level of disinterested tolerance, but as time goes by homophobia (at least overt homophobia) will seem as antiquated and ridiculous as KKK/Jim Crow style racism, simply through attrition. Dosen't anybody should let up at all on any legal fights, just an observation about the progress of things.
posted by jonmc at 1:20 PM on July 7, 2006

[i]It's clearly a violation of Full Faith and Credit except that some states have already passed laws saying they won't honor it if it's gay marriages.[/i]

Actually, its not clear that DOMA would violate the FF&C clause of the Constitution. The Supreme Court has long recognized a "public policy" exception to the clause, which allows states to ignore the acts of other states that would be in conflict of its public policy. Forcing another state (say Mississippi) to recognize a Massachusetts homosexual marriage license would clearly violate Mississippi's public policy against recognizing such marriages.

In any case, even if this exception didn't apply - the FF&C doesn't apply to marriages. The clause states: Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. A state marriage license is not considered to be an act, record or proceeding (which seems counter-factual - which it is). However, what is interesting is that while marriages don't get FF&C protection, divorces do. Therefore, be on the lookout for cases involving gay couples married and divorced in MA which has an affect outside of the state. For example, if a divorce decree entered by a MA court ordering one spouse to give a winter home in Mississippi to the other. If the first spouse then goes to Mississippi and challenges the ruling, it will be interesting to see the results. I think this is the kind of case that will ultimately end up before the Supreme Court in order to challenge DOMA.
posted by thewittyname at 1:34 PM on July 7, 2006 [1 favorite]

The bottom line is the legislature SHOULD be the ones to fix the law to alow gay marriage. Oy. They can barely agree on a budget and you don't see politicians taking a stand much of anywhere across the U.S. Swell.

We have the shittiest, laziest, most incompetent, corrupt state legislature in the U.S., and I just think it's funny that so many posters seem to be hopeful the legislators will handle this issue and you're the only one who has even hinted at how that's going to be a problem.
posted by Alexandros at 1:34 PM on July 7, 2006

"Pointing out that stable relationships between parents are important for children, that straight couples can conceive children by 'accident,' and that gay couples can only have children with advance planning, Bloomberg and Spitzer argued that straight couples need the stability of marriage, but gay couples do not."

Whuthemutherfuh?
*regrets ‘do not take human life’ commitment*

By the same logic, straight couples cannot adopt children.
How is it even possible that anyone could argue that two people - of whatever sex - who want a child, prepare for a child, put themselves in a position financially to support a child, are less able to be good parents than two kids who’s only preparation for a child is digging heel marks into the roof of the family truckster?

Bigoted closeminded fucks. Truly appalling.
I agree with troybob and jonmc.
(But man I’d like to hit someone with a brick.)
posted by Smedleyman at 1:34 PM on July 7, 2006

Don't blame you, smedleyman, but I wouldn't give 'em the satisfaction.

(side note: I was out with friends in the West Village last night and passed by this rally at the Christopher Street subway station. I remember wondering what spurred it. Now, I know)
posted by jonmc at 1:40 PM on July 7, 2006

The decision is an opportunity for gays to win this issue democratically. Eliot Spitzer has pledged to sign a gay marriage statute and I suspect that a clear majority of Democratic candidates, and a sizable share of Republican candidates, for the legislature will be on board by November.

It's next to pointless to rely upon judicial intervention when trying to expand legal priviliges. Rights are only truly won when majorities accord them; the impact of Brown vs. Board of Education was trivial compared to that of the civil rights laws of the 1960s, which were the source of substantially all of the desegregation that we've seen in this country. Abortion is a great contrast: liberals relied upon the courts, and it's still not a politically secure "right" battle and it's still winning elections for conservatives (it makes more sense to credit George W. Bush's presidency to Roe vs. Wade than to Ralph Nader.)
posted by MattD at 1:49 PM on July 7, 2006

Or Kansas, or Ohio, or Georgia, or West Virginia, or Texas, or .....
posted by blucevalo at 1:58 PM on July 7, 2006

Well, then the key in those states would be to organize the gay population that's there, and try somehow to swing as many straights to a pro-gay or at least laissez-faire attitude so as to make the opposition look buffonish and fanatical. How to do this, I wish I knew.
posted by jonmc at 2:02 PM on July 7, 2006

...maybe just a few more seasons of Queer Eye...
posted by troybob at 2:22 PM on July 7, 2006

However, what is interesting is that while marriages don't get FF&C protection, divorces do.

Divorce is a judicial decree/finding, marriage isn't.

I've wondered if a liberal state could structure its marriage laws as a judicial finding -- you supply evidence to a judge, who agrees that you meet the relevant criteria, whatever they might be, and declares that you are married under the laws of State as you petitioned to be. A reverse divorce, as it were, that might be harder for the more dumbfucky states or feds to ignore.
posted by ROU_Xenophobe at 2:32 PM on July 7, 2006

i'm curious...has it been tried or studied, the idea of the government giving no legal recognition of marriage at all? i would see it as basically putting marriage back into its religious context, removing the special legal rights automatically granted to married couples, leaving it to people to form their own family contracts and determining their own next of kin, with their own stipulations/terms for termination...

...is it just tradition that makes it otherwise? given how much the definition of family has changed, is it necessary for government to have any role in officially defining family, or "protecting" it?

...just taking my cues from the religious right here...they said gays were attempting to destroy traditional marriage...i just don't want them to go through all the worry and effort for nothing...
posted by troybob at 2:48 PM on July 7, 2006

In any case, even if this exception didn't apply - the FF&C doesn't apply to marriages.

I don't think that's right. As far as I know, states generally recognize that marriages are subject to the FF&C clause, with concessions for the public policy exception.

It is the generally accepted rule that a marriage valid where the ceremony is performed is valid everywhere.... There are, however, certain exceptions to that rule, including one which regards as invalid incestuous marriages between persons so closely related that their marriage is contrary to the strong public policy of the domicil though valid where celebrated.

Restatement, Conflict of Laws 132 (b).
posted by monju_bosatsu at 2:58 PM on July 7, 2006

i like that idea, ROU.

but as time goes by homophobia (at least overt homophobia) will seem as antiquated and ridiculous as KKK/Jim Crow style racism, simply through attrition.
homophobia and KKK style shit--it's 2 evil tastes that taste great together?
posted by amberglow at 3:12 PM on July 7, 2006

and i've said this over and over, but what the hell--social acceptance is not at all translating into legislative or other wins. We have less rights now than we did even 2 years ago in most of this country.
posted by amberglow at 3:13 PM on July 7, 2006

i'm curious...has it been tried or studied, the idea of the government giving no legal recognition of marriage at all?

While many of the legal benefits of marriage could also be obtained by a contract between the two members, not all of them could. One that comes to mind is spousal privilege.
posted by DevilsAdvocate at 3:30 PM on July 7, 2006

social acceptance is not at all translating into legislative or other wins.

Not yet. But it makes the positions of the haters less tenable.

We have less rights now than we did even 2 years ago in most of this country.

When something is in it's death throes, it breifly becomes stronger as it fights to live. State-sponsored homophobia is in such a state, I think. And nowhere did I say that people should lighten up on any legislative battles, I'm just thinking out loud.
posted by jonmc at 3:45 PM on July 7, 2006

One that comes to mind is spousal privilege.

yeah, as wikipedia notes:

Marital privilege is based on the policy of encouraging spousal harmony.

what i don't get is: what is it the government's business? here, the state-sanctioned marriage bond (and only one sanctioned by the state, no matter the quality of the relationship) offers a free pass that doesn't even extend to those of the same blood...so married couples can engage in criminal conspiracy for the sake of 'spousal harmony'? i'm sure there are other issues bound up in this--it's not like i've studied it...but on the surface it seems a silly privilege to be granted to married couples uniquely (excepting legal/medical privilege)...
posted by troybob at 6:23 PM on July 7, 2006

from GayCityNews' scathing report on the ruling: ... Of course, Smith utterly fails to explain why not letting same-sex couples marry advances this goal of getting opposite-sex couples to do so. ...
posted by amberglow at 10:51 PM on July 7, 2006

and from another report there: ...Alan Van Capelle, executive director of the Empire State Pride Agenda, the statewide gay lobbying group, vowed that gay marriage would become a reality in New York.

“It took 31 years to pass the Sexual Orientation Non-Discrimination Act,” he said. “Thirty-one years for New York State to say it was wrong to fire someone from their job, kick them out of their house, or deny them credit because of their sexual orientation. I promise the couples up here that it will not take 31 years to win marriage in the state of New York. It will only take a few short years.”

Of the gay marriage bills in Albany, the 151-member Assembly has 22 sponsors and supporters and the bill in the 62-member state Senate has nine sponsors and supporters. ...

Getting SONDA thru really did take forever. (first introduced in 1971, finally signed into law in 2002). Our state legistature sucks--they really will not move on this--even with Spitzer in the Governor's mansion. They're always very adversarial with all governors and Bruno and Silver are there for life.
posted by amberglow at 11:04 PM on July 7, 2006

"i would see it as basically putting marriage back into its religious context, removing the special legal rights automatically granted to married couples" - posted by troybob

In answer to all of your questions - taxes. It's a tangled morass. One of the areas where it gets hung up, for example, is local property taxes for schools. Some folks (typically right wing) have issues with paying for public schools. The way I interpret conservativism supports the preservation of institutions which have/do serve the country well (be it liberty, economic, etc.) Education is pretty much a cornerstone. Some folks don't want to pay property taxes to support schools. Or want to pay much less now that their kids are out. Well, let's take it as read that education is A-Ok and paying for it is a good idea. Educating a child is only part of human development. The state should want to socially support having healthy, well fed kids 'cause that's conducive to education, good citizenship, etc.
So you give parents a tax break. Parents being the generators of children. So taking a step back, what generates parents (traditionally) is marriage. For a variety of reasons, part of which is the union of two families - support units to help guide the child to be a productive member of society etc. etc.
Jumping back - we already have people who don't want to pay for educating someone else's child. One could argue that case that since those blood ties don't exist, the related families, and other traditionally emotionally invested won't put that kind of effort into the child.

I personally find that position disgusting. I did in fact almost kill someone for holding that position, regarding an adopted member of my family as not 'truly' family. (Long story). But it does recognize that some people have certain perspectives on these kinds of bonds. And there has been a long history of trying to figure out how to control the masses through social bonding. Confucius talked about the "fifth relationship" which was friendship.

Friendship is neither a family bond nor a state bond and lays outside the web of parallel devotions that bound these together. And it was voluntary. One was obligated to serve one's family (and preserve it by producing offspring) and obligated to serve a ruler, but not to make friends. Friendship was also non-hierarchical, which set it apart from other social relations.

Homosexuality, is, in a sense the American Confucian friendship. There are no blood ties of family (from mutual offspring) there are no obligations which run parallel to a homosexual relationship (in the modern U.S.) nor is there a natural heirarchy (my pardon to women everywhere, but the guy can split - and indeed the same undercurrents run beneath the opposition of choice on abortion).
*skipping ahead*
In essence - the social order, special legal rights - which can certainly be percieved of as privilege, is also a form of binding which restricts mobility. That is, the mobility to just up and split with all your (taxable) stuff/talents/skills /production of wealth/etc and not stick around to pay for (for example) the next generation of kids and die with all your toys.
Very loose on terms there, and a bit far afield, but that's the gist. People have philistine attitudes about serving the next generation. The more they have invested, the less likely they are to split from the program.

Personally I don't see why homosexuals don't protest property taxes on this basis. Given these kinds of laws: they will never have children, they are not allowed investment in society, they therefore reap less benefit from society that others do - why then should they pay the same in taxes?
posted by Smedleyman at 11:38 PM on July 7, 2006

/I'd add spousal privelege derives from the same kind of thinking. Competition between siblings is often fierce. You wouldn't expect your Mom to knife you in the back (legally) but why should you trust this women who you're not related to? So you get a social incentive to trust her an extra bit.
posted by Smedleyman at 11:41 PM on July 7, 2006

Smedleyman, all that means is that divorce should be harder to get, and not that others shouldn't be allowed to marry (especially others with children). Heterosexuals are so flighty and irresponsible (which is what is said about us gays, btw), it's clear that they are the ones that need new court rulings and laws to keep them bound. Meanwhile, the children now in families headed by samesex couples are still unprotected (there are more and more of them each year, and if it's really about cohesiveness and ties and structures for the sake of the children, it should be about cohesiveness for the sake of all children).

People serially marry now anyway, often producing new heirs too--either the whole setup is broken or what you speak of is not really the impetus behind rulings that discriminate against some families and not others, but just an excuse to continue doing so.
posted by amberglow at 10:40 AM on July 8, 2006

I actually would be fine if --to start-- the courts, since they're all about the children, allowed samesex marriage (or all marriage) only to couples with kids for now. But since marriage is not legally a group thing or couple thing but an individual thing, that wouldn't pass.
Basing marriage rulings on children is all the more inexplicable given that's it's held to be an individual right.
posted by amberglow at 10:44 AM on July 8, 2006

"Basing marriage rulings on children is all the more inexplicable given that's it's held to be an individual right." - posted by amberglow

I wasn't arguing the position. Just illustrating it. It's not that homosexuals are flighty or heterosexuals are flighty - it's a matter of how can you socially bind otherwise mobile units of wealth into a cohesive stream?

And I'm not really trying to justify that either. Just saying that's one element at work here.

I tend to get bogged down plumbing the depths, I should really stop.
posted by Smedleyman at 9:53 PM on July 8, 2006

... Today the word on the wingnut street is that this ruling in New York against same sex marriage is actually a victory for gay rights. This argument is only to advance the conservative pet theory that having the court step in to protect a group that’s being legally discriminated against causes backlash and makes it harder for a group to gain social approval. The “activist judges hurt the cause” theory is quickly gaining ground and soon will be competing with “FDR didn’t save us from the Great Depression; Hitler did” for Weirdest Conservative Ahistorical Argument.

This theory, of course, is disingenous at best. It’s an attempt to make liberals think we have real allies on the right when it comes to civil rights issues, so we’ll listen to their “advice” and abandon a strategy that actually works. ...
posted by amberglow at 3:51 PM on July 9, 2006

U talkin’ to me amberglow ? or u just posting?
posted by Smedleyman at 9:31 AM on July 10, 2006

just posting, but also responding to those who knock the fight.
posted by amberglow at 11:38 AM on July 10, 2006

... Consequently, “the Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples.”

To shore up those rickety heterosexual arrangements, “the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.” Lest we miss the inversion of stereotypes about gay relationships here, the opinion lamented that straight relationships are “all too often casual or temporary.”

When an Indiana court introduced this seemingly heterophobic logic last year in upholding a state ban on same-sex marriage, I thought it was a cockeyed aberration. But after both New York City and New York State presented similar logic in oral arguments, and the court followed suit, I began to understand the argument’s appeal: it sounds nicer to gays.

It also sounds more desperate. New York’s ban on same-sex marriage is based on provisions enacted in 1909. It is preposterous to suggest the Legislature promulgated and retained the law because it believed gays to be better parents. Moreover, as New York’s chief judge, Judith Kaye, pointed out in her dissent, even if marriage were a response to the dangers of “reckless procreation,” excluding gay couples from marriage in no way advances the goal of responsible heterosexual child-rearing. “There are enough marriage licenses to go around for everyone,” Judge Kaye noted.

This is not the first time courts have restricted rights with a flourish of fond regards. In 1873, the United States Supreme Court upheld an Illinois statute prohibiting women from practicing law. Concurring in that judgment, Justice Joseph Bradley observed that the “natural and proper timidity and delicacy” of women better suited them to “the noble and benign offices of wife and mother.”

Hostile rulings delivered in friendly tones can take longer to overturn, as evidenced by the century that passed before members of the Supreme Court reversed their thinking about women and, in a 1973 opinion in a sex discrimination case, recognized that confining women in the name of cherishing them put them “not on a pedestal, but in a cage.” ...
posted by amberglow at 8:38 AM on July 14, 2006

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