"In this country, the people decide. Not monarchs. Not apparatchiks. Not generalissimos. We decide. And we don't want SSM. We never voted for SSM. We aren't going to vote for SSM. You tell us that some would-be despots in black robes will utter some magic phrases and force us to accept law that we don't want."

Wow. And people say I'M emotional.

Ya know, Justin, just half a century ago, most U.S. states outlawed marriage between whites and blacks. Many clergymen preached that mixed-race unions were profanely immoral, violating the will of God. Polls found 80 percent of whites in agreement. Florida imposed a 10-year prison term for such weddings, and Alabama up to seven years.

Georgia’s Supreme Court once ruled that interracial marriage isn’t moral because "the God of nature made it otherwise." Virginia’s Supreme Court upheld the ban, denouncing "alliances so unnatural that God and nature seem to forbid them." A Pennsylvania court ruling said couples must "follow the law of races established by the Creator himself."

Things change, Justin. It isn't the job of courts and judges to uphold the will of the majority. And when another half-century passes, Gay couples will be as accepted as interracial ones are today ... and people will look back, wondering what all the fuss was about.

"It isn't the job of courts and judges to uphold the will of the majority."

What is their job, Chuck? And what constraints do they have in doing it?

Are there cases when judges should hold up the will of the majority, or are they always supposed to favor the minority? How do we know which one they should favor in a particular case?

Utopian Idealism defines what is going to happen "in another half century"
As Chuck has stated - he is clarvoint, he can see the future - and his justice will ultimently prevail.

Of coarse - Legalized Abortion was going to end illagitamicy, single parent households were to disapear since every child was a wanted child.

No Fault Divorce - this was going to be better for children, more healthy than raising them in a "loveless" enviroment.

Gender equality - was going to make relationships easier and marriages more stable - as true equality would bind equal partners together.

Its interesting to note : when no-fault divorce was introduced, a common refrain was-

"HOW DO TWO PEOPLE GETTING DIVORCED EFFECT YOUR MARRIAGE"

Shamefull Sophistry uttered by dellusional fanatics, bent on forcing there simple minded ideology on all of society.

Dear Mike S.:

It is not the courts' job to uphold the precise will of the majority of the people. That's what elections are for. The job of the courts is to uphold the Constitution, regardless of whether the necessary decisions fall in line with the will of the majority. It is up to the judges to determine, without bias from the rest of the population, what constitutes equality under the law, or equal protection. It seems more than obvious to me that to exclude Gay people from the institution of marriage is a clear violation of any notion of "equality," and I have yet to see anyone dispute that on a rational level. Therefore, it is not "activism" on the part of judges to declare that Gay people should be treated equally under the law, rather it is an example of judges performing their rightful duty.

Chuck,

"The job of the courts is to uphold the Constitution, regardless of whether the necessary decisions fall in line with the will of the majority."

And what criteria or standards should they use in upholding the Constitution?

"It is up to the judges to determine, without bias from the rest of the population, what constitutes equality under the law, or equal protection. It seems more than obvious to me that to exclude Gay people from the institution of marriage is a clear violation of any notion of "equality," and I have yet to see anyone dispute that on a rational level."

And I've yet to hear a rational explanation of why I can't substitute the words "bisexual" or "polygamous" for "Gay" in your statement.

Chuck- Equal protection & due process clause dont exist in a vacume.

Spend some time in law school and you will learn that you interpret amendment as they were written
(and that was written to protect racial minorities from unjust discrimination)

You dont say that seperate bathrooms are "seprate but equal accomadations" and then institute single sex lavatories on the basis of "sex discrimination"

A hell of a lot more goes into legall reasoning than just chanting the word "equality"

By the way, for those who don't have a problem with judges deciding things for the rest of us, imagine that Terri Schiavo was your sister, or your daughter.

What kind of law is it, what kind of society is it, that says the lives of Khalfan Khamis Mohammed and Mohammed Daoud al-`Owhali’s [the terrorists convicted in the Kenya and Tanzania embassy bombings] have value — over which we must anguish and for the sustenance of which we must expend tens of thousands annually — but Terri Schiavo’s is readily dispensable? By court-ordered torture over the wrenching pleas of parents ready and willing to care for her?

link

Talk about "Not in Our Name."

Chuck,

I don't get it - you just cited a bunch of cases where you think judges were incorrectly upholding or interpreting the law. How do you know they aren't making a mistake now by insisting on SSM?

"What it means is that we need to have a check on the system to make sure that the tyranny of the majority doesn't allow democracy to run amok, trampling on the interests of the minority and disenfranchised." Seeing as how we've endured three or four decades of cultural Marxism deconstructing our society, largely with the help of lawyers wielding the threat of lawsuits as a weapon, and black-robed lawyers legislating from the bench with the slimmest of majorities among a handful of jurists, I think we damn well ought to give "the tyranny of the majority" a chance for a while. I think it would be a very, very welcome change of pace.

ELC & Ben

I agree that drastic changes are important
As Ben stated - the confirmation of constructionist judges (you know, "out of mainstream" "far right wing") is essential.

Two or three (possibley in this term) are essential {we could actually right the ship without major procedural changes)

To this end I am calling every day to my Senators & putting heat on republicans and Spector to toe-the line on appointments.
I am also working with the KofC to light things up come confirmation time!

(this is really are last chance- we cant get Borked again (or Kennedied))

However - On the SSM question alone-
I believe they have a stratagey to sit on there gains no matter what. Yhis makes development in Mass. crucial.
Is amazing what they can accomplish with a handfull of people who are willing to break the law.

Thanks

(sorry for mistakes- cant manage to spell check edit into these comment boxes)

Ben makes the point that if We The People support “slavery, racial segregation, denying women the right to vote, and preventing people of different races to marry, (ResIpsas' words)” and you believe that We The People shouldn’t be allowed to, say, own slaves, than you believe that We The People are “ignorant, stupid, and evil.”

If follows than, by that same logic, that if you believe that We The People are not ignorant, stupid, and evil, if We The People want slaves slavery is enlightened, intelligent, and good. THAT, in my humble opinion, is evil.

This story about campaign finance "reform" is more evidence that liberal elites don't care for democracy. (And yes, Bush was craven and foolish for signing the bill.)

All the liberal caterwauling about corporate control of the media would be comical if the stakes weren't so high.

As I've said before, Fitz and Justin will be the first in line at the courthouse when California voters decide to tax religious institutions or Massachusetts voters decide to ban all gun. They will come up with constitutional arguments saying that such actions are unconstitutional--although they may not be.

We have the courts for a reason. To prevent constutional violations. That the framers did not anticipate those potential violations 250 years ago is not really the issue. The constitution was never meant to be a dead, stagnant document stuck in time.

Arturo,
What makes you so certain that "We The People" would want something so repugnant? How many people do you know that support a return of those conditions? If you know more than a handful out of the hundreds of people you probably know, your perspective is severely limited.

What is their job, Chuck? And what constraints do they have in doing it?

Their job is ensuring that the rule of law is applied equally to all the citizenry. Do a search

You dont say that seperate bathrooms are "seprate but equal accomadations" and then institute single sex lavatories on the basis of "sex discrimination"

No, because sex distinctions (and race, etc) are not automatically discriminatory. If we separated the sexes in bathrooms because we wanted to continue to subordinate women or if we provided women with bathrooms significantly sub-par to men's rooms, then that would be a problem.

"The constitution was never meant to be a dead, stagnant document stuck in time."

That's why we have a procedure for amending it. What you really mean is, "If the constitution doesn't support my preferred policy, then to hell with what the text actually says."

Actually, it's a reason not to amend it willy-nilly to please the needs an angry majority.

The Constitution stands the test of time and has been able to adapt to things we never would have dreamed it. To scar it with silliness like the FMA show the level of disprespect conservatives have for the court and the Constitution. They would much prefer mob rule with no checks and balances.

Smmtheory:

If We The People want slaves, should we be allowed to keep slaves? If you think no, than you agree with me. If you think yes, you agree with Ben.

Arturo

Yes Mike, you said it- "sex distinctions (and race) are not automatically discrimination"
We dont allow seprate bathrooms because we want to keep women inferior (nor do we not allow SSM because we want to keep gays down) and we dont have different accomadations because the courts make us, but because women dont generally pee standing up.

See - men and women are different- thats judged at intermediary scrutney - becuase RATIONAL public policy is weighed against egalitarian principle's

The same thing will be done when marriage
(providing a general framwork so that men & women can recieve protections, duties ect. because they procreate- and the object of that act is best raised with its natural mother & father)
Thats RATIONAL also.
You may not like it..but thats not the same as irrational..

Now I believe that you all (Res Ispa, Mike, Nancer, Chuck) ALL find it RATIONAL also.
Your simply forced by your legal stratagey to claim it is not.

Arturo, it is entirely Constitutional for the American people to ammend the document creating a "right" to own slaves. It will never happen, but it is entirely legal to do so. If you think that is not right, and We The People should not have the right to make such drastic changes to our government, then you must be appealing to some "higher authority" of your own. But who are you so force the will of your "higher power" onto everyone else?

Res, the U.S. Constitution cannot be amended "willy-nilly". It is a long and deliberative process, for that very good reason. It cannot be done lightly, but We do have the right to.

And as our hand is being forced, and the document is being ammended by judges and activists who are so convinced of their own "higher power", we will.

"To prevent constutional violations."

This is the problem - you have no principled way of determining what a constitutional violation is. If you don't rely on the text and meaning of the constitution, then like Ben said you can interpret it to mean anything you want. Emanations and penumbras, and all that.

Not much time to post today, but a quick response to this:
Chuck: "It is not the courts' job to uphold the precise will of the majority of the people. That's what elections are for. The job of the courts is to uphold the Constitution."

Where did the Constitution come from, Chuck? Did the Hand of God etch it on a mountainside? No. The words that are in the Constitution are there because people voted on them. That's what makes those words special.

The Constitution isn't an alternative to the will of the majority. The Constitution is itself the will of the supermajority, albeit a supermajority in the past. In our legal system, everything is the will of the voters, whether expressed directly or indirectly. There is no source of law other than the voters.

Confusion on this is common because Chuck's statement sounds a lot like a related but very different point: Judges are not required to uphold the will of today's majority. The whole idea of the Bill of Rights is for yesterday's supermajority to restrict today's majority.

The trouble is that people often summarize that point by omitting the time reference. They say that a judge's proper role is to thwart the will of the majority. That sloppy formulation implies to some that there is something more than the will of the people that governs us. But if you restate the idea more precisely, it should be clear that the question is not "Who decides?," but "When did they decide?" and "By how large of a supermajority?"

The "Who?" never changes. It is always the people. They wrote the Constitution. It means what they intended it to mean. The Courts' job is to determine what they intended it to mean.

Why is that so hard to accept?

--...If you think that is not right, and We The People should not have the right to make such drastic changes to our government, then you must be appealing to some "higher authority"...

Marty:

1. You think it is right that We The People should be allowed to keep slaves if We want?

2. Yes, I do think that one day your side will come to know that affording the same respect and dignity to gay people, as to heterosexuals, is what God intended.

"1. You think it is right that We The People should be allowed to keep slaves if We want?"

No, it would not be morally right. But it could be constitutional, if the constitution was so amended. There's no strict correspondence with "morally just" according to some external standard and "constitutionally allowed". Of course, a constitution that is manifestly unjust will not be stable over the long term, but that's a different question from deciding what laws are or are not constitutional.

On your own account of judicial review, what recourse would you have if a judge, rather than the people, said that slavery was legal, a la Justice Taney in Dred Scott?

"2. Yes, I do think that one day your side will come to know that affording the same respect and dignity to gay people, as to heterosexuals, is what God intended."

This equates "affording the same respect and dignity" and "affirm their choices regarding sexual behavior". But clearly those things are not necessarily synonomous.

The Constitution isn't an alternative to the will of the majority. The Constitution is itself the will of the supermajority, albeit a supermajority in the past. In our legal system, everything is the will of the voters, whether expressed directly or indirectly. There is no source of law other than the voters.

This is patently false. The Constitution (and the Bill of Rights) is not the will of the supermajority of the past; it is the establishment of the rule of law, of the people, FOR the people, by the people. It is the basic framework by which voters can govern themselves.

Do a search for Plato, demos and polloi. Without the rule of law, we are at the mercy of the mobs.

The "Who?" never changes. It is always the people. They wrote the Constitution. It means what they intended it to mean. The Courts' job is to determine what they intended it to mean.

Fine, but by those standards no conservative should ever bitch about having semi-automatic weapons bans because the founding fathers never intended for the Second Amendment to cover those. Oh, and women shouldn't be able to vote because the founding fathers never intented for them to. Oh, and the Fourteenth Amendment only protects blacks from racial discrimination because there were no Arabs in the country back then and they didn't indend for it to protect them.

Give me a break.

Michael: Your last post made no sense at all to me. I can kinda guess what you're trying to say, but it's all very unclear. Take a deep breath. Relax. Try to make sense.

Despite what some people say here, judges cannot make the Constitution say anything they want. Their job is not to confirm the will of the people, not is it to undermine it. The job of judges is to ensure that laws are being applied correctly, and are consistant with higher stratas of law, namely state constitution and the US Constitution.

The problem is that some passages of the Constitution are broad guildlines for federal and state laws, so there are different opinions on how to apply these guildlines, for example, what does "equal protection under the laws" mean? The supporters of SSM contend that they don't have equal protection under the laws because the legal rights & responsibilities that opposite sex couples can obtain with respect to each other by getting married are either unavailable to same sex couples, or they are available only at a must higher cost ($3000 for attorney & filing fees vs. $50 for a marriage license).

This may be a shock to some who've read my other comments, but I admit that some court decisions are really stretching their interpretations. The worst example I'm aware of is the Dred Scott decision, which I had not actually read until recently when it was referred to in another discussion here. It essentially rules that negroes cannot be US citizens, the Founding Fathers never intended the lofty ideals expressed in the Constitution and Declaration of Independence to apply to them, therefore, Negroes are not entitles to protection under the law. YIKES!!

But back to SSM. Have we discussed the establishment of a legal bond that two people could obtain simply called "couple partnerships"? This would establish the same rights & responsibilities between two parties as marriage, and be available at the same price as a marriage license. However, it would not legally be called "marriage." This would respect the feelings of people uncomfortable with gays getting married, while allow "separate but equal" protection, much like separate restrooms for men & women (which exist only to respect the feelings of those who don't want members of the opposite sex in the room while they use the toilet.)

Who do you all think of the "couple partnership" idea?

How can I not get in on this ?

Ironically, my first response is in support of something Mike S. wrote. (Ironic based on our history of exchanges). It was:

“Everybody repeat after me: "Unjust does not mean unconstitutional. Unjust does not mean unconstitutional. Unjust does not mean unconstitutional..."

I agree. There are many laws that may be seen as unjust but yet are within the constitution. And yes, if the people so choose, they can amend the constitution to do what they want. In this case, they can amend it to deny SSM. They can amend it to return to slavery. They can amend it to do what they want. I also agree that some of the recent SCOTUS decisions are very concerning. Particularly, the recent juvenile death penalty case and the prayer at the Texas HS football game case. I agree with those that say these are examples of legislating from the bench rather than interpreting current constitutional law.

So while I do support equal rights for gays and feel their relationships should be granted legal recognition, I see where the current process has negative consequences.

Also, I am not yet convinced that denying SSM is an example of sex discrimination because marriage IS available to them – just not in a meaningful way. I do see the unjustness of it – but as Mike wrote, ‘Unjust does not mean unconstitutional”.

But the problem in that argument lies in the fact that marriage is NOT constitutionally defined as being between a man and a woman in those states where the judges have ruled (MA, NY and CA) Only the recent amendments have put that in. Therefore, I think a judge has more space for this ruling under the equal protection clause (although I am not convinced) than it did for the juvenile death penalty case under the cruel and unusual punishment clause.

A couple of other things from Ben’s statements:

Marty: "Why are 'We The People' being shut out of the most important cultural decisions of our time?" ResIpsa: "Because 'We the People' have a knack for approving of things like slavery, racial segregation, denying women the right to vote, and preventing people of different races to marry." What a remarkable exchange! On that logic, why bother calling them judges? Why not just call them benevolent oligarchs? Or we could buy them little faux military uniforms and call them generalissimos."

The reality is that the judicial branch is there to make sure that the legislature does not make law that goes against rights guaranteed by each states and the federal constitution. I also happen to agree that they have ‘gone too far’ in many cases – even in those where I agreed with their beliefs – but felt their opinion was based on their political view and not an interpretation of whether the law in question was constitutional or not. Yet if new laws were being made to legally recognize heterosexual relationships and deny same-sex relationships, I’m not sure they could be constitutional (in those states without an amendment).

But where Ben is off-base is in his “We Don’t Want It” section. We are not a pure democracy. The legislatures, the President and yes, the legal system do many things regardless of public support. The majority of the public felt OJ was guilty, was against the War on Iraq, was against the impeachment process of Clinton, was in support of the continuation of the Brady Bill and many other examples of laws, judicial decisions (some of which you may support) and executive branch decisions made without the support of the majority of the people. What you are saying here is that a judge should make no ruling that goes against the majority of the people. That is unequivocally wrong.

From Mike S.: “What I am NOT willing to stipulate is that being raised in a same-sex household is no different from being raised by ones biological parents. Which is precisely what enactment of SSM would say.”

Come on. Does that mean that by allowing adoption says that being raised by adoptive parents is no different than being raised by biological parents? Does that fact that an 80 yr old man is allowed to marry a 19 yr old girl mean that being raised in that situation is no different than being raised by people closer in age? The law also allows people to marry regardless of financial status although being raised in a poor family may be different than being raised in a middle-class one. So you seem to be saying that all things must be equal in order to legally acknowledge it. What kind of socialist argument against SSM is that ?

As much as I’d like to continue … my paid employment beckons … I hope to get back and stress some people out.

"what do you think of the couple partnership idea"

Your right about one thing Dancer - its an "idea"

I am not defending a word (i.e. marriage.)Im defending an idea!

No matter what you call it, Be it civil unions (thats what their called in Scandanavia) or couple partnerships - or domestic partnerships or anything else. They all conflate the unique status marriage has in our society.

We have existed for millinia in this country and civilizations around the world without having other institutions under a special rubric and given rights and privelages.
(much less the same rights and privilages)
as marriage

Two brothers may want (or need) special rights
A son or daughter taking care of sick relatives may want (or need) special rights.
Close friends or roomates may want (or need) special rights
Even divorced people (they still have familial ties remember) may want certain rights (like health care ect.)

If society wants to grant them AND/OR Gay couples some or all of the rights of marriage...then call your legislature and ask him to sponsor such a bill.

This is a bate & switch tactic...
Gay couples are not being deprived of anything.
The courts in Mass,& Vermont commited judicial tyranny...its bad law and worse public policy

Its wrong and I have NO sympathy for your lame (made up) plight!!

I save MY sympathy for those 93% of prison inmates who dont have fathers,
Or the 70% illegitamcy rate among the under class.
or the 50% divorce rate that tears up families and children.
Or the rising rate of young women who go barren waiting for Mr. right.

Our marriage culture is falling apart because of the sexual revolution of the 1960's
Its taken 40 years of sustained damage that liberal assholes like you (inhuman monsters)
call "evolution" & "gender equity"

And now (just when its starting to show signs of healing itself) Gay activists come along and want to kick the cruches out from under it.
They want to attack the very definition of the word. Destroy its very concept.

And they call it justice...
Why?
Because their soooo narcassisitic that they only think of themselves and their selfish desire's
and their idelogical kin in the universities and feminist ranks.

And not all those poor kids in broken homes, or divorced families....or prison.

Mark: "What [Ben is] saying here is that a judge should make no ruling that goes against the majority of the people. That is unequivocally wrong."

No, I'm not saying that Mark. The more precise heading would have been: "We never wanted it." I'm repeating what I already said in this thread, but I don't dispute that the point of our Constitution is to hold back momentary passions. Your examples of OJ Simpson, the Clinton impeachment, and the War on Terror are fine examples of that. (Though we might differ on the details.)

But the point---again---is that the Constitution comes from the people. The people wrote those words.

The difficulty here gives me an idea: We origialists should stop personifying the Constitution, e.g.: "The Constitution grants," or "The Constitution guarantees." It's a common metaphor, but it clouds our thinking in this case. The Constitution is nothing but some words on paper. The document itself doesn't crawl around Washington DC, smiting errant legislators. It's the people who do things. So let's rearrange our syntax to emphasize that fact.

The Constitution doesn't grant us freedom of speech. Americans granted themselves freedom of speech by voting for the Bill of Rights. The Constitution doesn't demand Equal Protection. Americans demanded Equal Protection, by voting for the Fourteenth Amendment. And the Constitution doesn't give a right to privacy---because the voters never put one into the document.

See, this is all agonizingly clear for me because I'm a lawyer by trade. I write legal documents for a living. Legal documents are not tea leaves. They are not the entrails of sacrificed animals. They are expressions of somebody’s intent. The reason that you create legal documents is to make your meaning clear and unambiguous. We sign written leases so that landlords won’t have to argue with tenants about how much rent is due. That’s the whole point! That’s what it’s all about! You write things down so that people won’t come up later with nonsensical claims about what it is that you meant to say.

That’s what makes Goodridge and the 1976 Mass. ERA so completely mind-boggling. At least with the 14th amendment, we don’t have an easy way to understand what they were thinking when they voted on it. We would actually have to read a book or two, and do a little research. But with the Mass. ERA, the truth is just a few clicks away. We can talk to actual voters who were alive when they passed it. And yet, the Goodridge court told them: “Sorry. You may have thought that you weren’t voting for SSM. But you were. Better luck next time, suckers!”

Fitz:

FYI, I am legally married to a person of the opposite sex.

What I've enjoyed about the comment discussions here is that for the most part they are more-intelligent-than-average discussions on contraversial topics that don't devolve into personal attacks or profanity.

Please don't wreck it.

Sorry Dancer..
That is my general feel however.
What I dont like about this WHOLE conversation (the one happening on the web, here, or in society)
Is that it is their argument on their terms!!
No matter what happens...they move THEIR ball , down THEIR court..

Most people agree that the mainstream media and the universities are liberal & even more people concead that there most liberal when it comes to social issue's...

We (social conservatives) have been trying to discuss everything from divorce to pre-maritial sex, to illegitamacy for 40yrs & CANT EVEN GET A HEARING!!!!!!!!!!!!!!

Now a handfull of lawless judges come out and pre-empt the whole family movement and call us IRRATIONAL BIGOTS.

Its frustrating to say the least..
But...
Sorry anyway.

Its taken 40 years of sustained damage that liberal assholes like you (inhuman monsters)
call "evolution" & "gender equity"

Woah there, bucko. Not all of us have even been around this long and not all of us are "liberal assholes". Pardon me, but your bias is showing...

Michael: Your last post made no sense at all to me. I can kinda guess what you're trying to say, but it's all very unclear. Take a deep breath. Relax. Try to make sense.

My garbled post was merely meant to point out that the founding fathers relied very much on Plato's Republic for their creation of the Constitution. And neither Plato, nor the FFs, had very much faith in the demos (common man). The rule of law is substituted for the philosopher kings Plato proposed, having little trust for rule by the rich or the commoners. The rule of law, therefore, creates a society where no social class is allowed to dominate over any other; that is a "just" society.

We are not a democracy. We have never been a democracy. And we should never become one.

It is up to the judges to determine, without bias from the rest of the population, what constitutes equality under the law, or equal protection.

Boy, Chuck. You must really hate the recent SCOTUS decisions citing public opinion and foreign precedents.

Mike..
stop pating yourself on the back for having read a little Plato.

Its a constitional democracy, a republic, a representative democracy its all sort of things.

However I believe Bens point on it being a supermajority law is essentially correct.
You say it is based on the rule of law..
That is correct.. His point is that original law (i.e. the constittion had to be adopted by the F.F who represeted the countries regions and were elected and Further was ratified by the respected states legislatures, as are all amendments)

I.E. - ALL laws come from the People... (even the "rule of law") the constittion or whatever.

Some people want to break those rules. in order to change other rules they dont like. (their called judges from Mass.)

And My Bias DOES show.. I dont try and hide it.
Have a little more philisophical and historical depth and breadth and your realize that (as I stated) New Leftists (liberal A*H*) started us down the road in the 1960's and we have been fighting them ever since. (its called the culture war)

Just because you werent born then, dosnt mean you thinking hasnt been philisophically hijacked by them.

Michael:

I’m very skeptical about the influence of Plato on the founding fathers. My understanding is that they were influenced mostly by the English history from which they had just emerged. The English were very familiar with the idea that one man could defy the will of the people. It was a major theme in their history. And in revolting, they were reasserting what they saw as the correct side in the debate: that the people do not exist to serve their government, but their government exists to serve its people. That’s why they put this phrase into the Declaration:

“We hold these truths to be self-evident, . . . That to secure these [unalienable] rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”

Notice that “consent of the governed” part? It’s not just some verbal fluff. It’s exactly what they were talking about. The English government was denying the colonists their rights as Englishmen. The king had signed a charter decades before guaranteeing the colonies a considerable amount of self-government. Later, the king and Parliament decided to ignore that deal, and set new rules. The colonists revolted because they were being denied the rights that their charters had granted them. They had tolerated the erosion of their self-government rights for several years, but finally they decided to stand and fight, just as their forebears in England had against previous despots.

Michael: “We are not a democracy. We have never been a democracy. And we should never become one.”

You’re confusing democracy with self-rule. We’re a very long way from the kind of mob rule that you’re talking about, Michael. But when US Sup Ct pulls new law that the country hates out of thin air, and when people try to claim with a straight face that that’s how our system of government ought to work because the voters are such ignorant, evil little bigots—then it looks like we are drifting back towards what the founders were fighting against.

It has been a while since I actually read the Declaration. This part seems relevant to the discussion:

“Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

fitz, your email is bouncing. drop me a line.

"Governments are instituted among Men, deriving their just powers from the consent of the governed."

Amazing words. Ben Bateman couldn't have said it better.

Yes, excellent Ben...

The most preceant line I believe is the
"when a long train of abuses....pursuing invariably the same Object envinces a design to reduce them under obsolute Despotism..."

That line, I would say started with the Griswold v Conn. decision (others differ) and continues to this day.
The Object is to demoralize the populace.. Litterally De-Moralize our body politic on the premise that sexuall liceance is akin to liberty & traditional values akin to "irrational" taboo.

Marty, Im at my local library at the moment & their default mail client wont pull up your address.

Perhaps their is some other way for us to exchange..
Maybe I'll get a new e-mail account. (my old box got so full I think it crashed- And I dont do personall mail from work)

A question for SSM supporters (and my fellow SSM opponents too, if they wish):

Let us suppose that it were possible to allow the legal marriage of gay couples.....without in the process changing the public perception of marriage as between opposite sexes. I don't think it is possible (at least not under the terms of the current debate), but let's just suppose there was a way to do it. Would you accept this, that is, would you be willing to accept retaining the general public perception of marriage as between men and women if individual gay marriages were legally recognized? Or would you want the public to get it through their collective psyche that marriage was now between any two people regardless of gender?

For SSM opponents, the converse question can be asked: would you be willing to accept legal recognition of individual gay marriages if you were convinced somehow that the general public perception of marriage would not be altered in the process? I know I would have far less problem with it if I thought this were possible. You see, it really isn't about punishing gays. I do believe that everyone has the right to live their own life as they see fit, provided they don't abuse others. It is the manipulation of the public's perception of marriage, and in the process, relationships in general, that I am concerned about.

More questions, some old, some new, may follow.

RK, yes, personally.

I'm really not so cold to the very real challenges that gay people face, least of all those posed to their unfortunate children. But there are two things standing in the way for me:

1. Resentfulness at this whole "equality" business. What is being demanded here is not equal treatment, but a very special case, based on a painful perception of various forms of anti-gay discrimination. It's true that America has a strong anti-gay bais. This also has nothing whatsoever to do with marriage law -- least of all finding it "unequal".

2. Recognition that this IS a special case. We could accomplish what you are asking, RK, by making a special exception for homosexual marriages, true "gay marriage", wherein two things must be proven: that the partners are indeed biologically homosexual (as something clearly distinct from male or female), and that such orientations are not subject to change over time.

That's what's being sold - "gay" marriage. But that's not what we're buying...

For SSM opponents, the converse question can be asked: would you be willing to accept legal recognition of individual gay marriages if you were convinced somehow that the general public perception of marriage would not be altered in the process? I know I would have far less problem with it if I thought this were possible. You see, it really isn't about punishing gays. I do believe that everyone has the right to live their own life as they see fit, provided they don't abuse others. It is the manipulation of the public's perception of marriage, and in the process, relationships in general, that I am concerned about.

Well, this is basically the situation we have now. Gays can get married in religious ceremonies, and they can gain many, if not all, of the legal benefits of marriage piecemeal. Your question is basically counterfactual - the primary motivation for the SSM movement is to have everyone agree that same-sex couples are no different from opposite-sex ones. There isn't really any other motivation. All the talk about rights and benefits of marriage is a proxy for the equality argument.

I'll repeat my question for the umpteenth time: there are a variety of people arguing in favor of SSM, which can roughly speaking be divided into two camps: the "conservative" side that wants to preserve marriage but allow gays in, and the radical side that want to deconstruct the institution of marriage and sees SSM as a way to do it. I don't know what the numbers on each side are, but obviously in this forum we primarily have the former. Yet I've never seen any of them address the radicals in any serious way - it's just taken as a given that they are wrong, and that their goals cannot, or will not, be realized through SSM. I don't see how you can expect those of us opposed to SSM to just take your assurances on this - why don't you offer some defense of why the radical view will not be realized? If you don't, how can you expect us to take your arguments seriously?

The large majority of people are hetersexual, therefore, if SSM is legalized, the large majority of married couples will be heterosexual. Most, if not all, of the married couples you personally know would be heterosexual. So I don't know why the public perception of marriage as being between a man and a woman - at least most of the time - would change.

When we read about the upcoming marriage Mary K. Letourneau and Vili Fualaau (who started having sex together when Vili was 12 years old), Britany Spears marrying her friend after a pitcher of margaritas, or women who marry mass murderers in prison, we roll our eyes because they don't fit our idea of the ideal marriage, yet we don't see these as a threat to the intitution of marriage itself.

Mike & Marty

Yes...
But I would reiterate.
Regardless of their actual motivation, or the plausability of allowing SSM without damaging marriage (somthing that is happening amoung even ourselves- merely by repeating gay "marriage" ad naseum)

P.C. - is all about whats NOT said.
As a country & civilization we are NOT talking about cohabitation, divorce, adultary, bareness, illegitamcy, fatherlessness- family and relationship breakdown between the sex's
(the whole gamit of social pathologies associated with the sexual revolution)

What they have done is open up another front in this war- and in doing so have captured the conversation away from the marriage & family movement.

In this enviroment THEY cant lose, WE cant win.

All we can do is triage.
Its all defense..
and its a shame.

Fitz, you asked for "the skinny" a few days ago, and since your email address is bogus, here are two sites you should be reading daily:

http://www.familyscholars.org/
http://www.marriagedebate.com/mdblog.php

Thanks Marty.

I Actually read those sites often.
They concern more general philisophical and legal arguments against SSM.

What Im really looking for (if it exists) is sites that go into the general political battles and legaslative battles througout the nation.
Example. - How goes the move to ammend the constittion in Mass?
Example. - Is Conn. actually at risk of legalizing SSM through its legislature? (I know the bill got out of commitee)
Example. How close are Calf. domestic partnerships to legal marriage & what do judicial insiders say may happen.

The devil as they say...is in the details,
If such a centralized data base (& analysis) does not exist - it should
(this has to be strangled in its grave politically) & traditional marriage and sexuallity needs to be defended and pronounced culturally to reverse trends of the 60's

(oh Marty)
My E-mail used to be good- but like I said, it got to full and yahoo bumped it- I guess?)
Thanks guys

Mike S:

1. The important thing about the Dred Scott decision was that it supported slavery, and that it supported “the will of the people” (and that it did so based on a strict interpretation of the constitution). A more enlightened judge, who believed in affording respect and dignity to the black person (against the will of the majority, but in keeping with a people that was becoming more enlightened), might have made a decision that was not “ignorant, stupid, and evil.” That decision might have furthered the enlightenment of the people. And that might have mitigated somewhat the devastating effect of the coming Civil War.

2. Homosexuals’ sexuality is not synonymous with their person’s dignity. But they are connected. Like with heterosexuals.

That decision might have furthered the enlightenment of the people. And that might have mitigated somewhat the devastating effect of the coming Civil War.

Or it might have exacerbated the rift, leading to a longer, more fierce war or even an actual separation of the states. Historical what-if is a lot of fun, but it's almost as difficult to predict what would have happened as it is to predict what a given change will do now. Funny that supporters of same-sex marriage have so little respect for what they do not know in both cases.

Justin:

It's not that we have "little respect for what we do not know." It's that we clearly see that your arguments are fundamentally based on denying the homosexual person his dignity.

The Dred Scott decision surely had great consequenses. The decision was either just or unjust. The consequences were either good or bad. I chose to believe that just decisions have good consequences. You can believe that good consequence necessitate unjust decisions. Or maybe you believe that the Dred Scott decision was just.

"They are expressions of somebody’s intent. The reason that you create legal documents is to make your meaning clear and unambiguous. We sign written leases so that landlords won’t have to argue with tenants about how much rent is due. That’s the whole point! That’s what it’s all about! You write things down so that people won’t come up later with nonsensical claims about what it is that you meant to say."

The problem with that Ben is that as you know, legal documents are written with such specificity that often there is no wiggle room; because if you give wiggle room; you know someone will try to wiggle. And if they are successful, then the next time the document is drafted, it will be even more specific.

I think your $1,000 example is terribly flawed one for that exact reason. No reasonable person could argue over the meaning of $1,000, just as no reasonable person could argue over the meaning of "[N]either shall any Person be eligible to that [the Executive] Office who shall not have attained to the Age of thirty five Years...."

The problem is that the phrases that we argue over are all written in broad generalities, and the Framers left behind no "book" of specific intent that tells us exactly how the norm is to be applied vis-a-vis every single thinkable specific factual scenario.

In European "civil code" nations, they attempt to do this with their legal codes and the result is hundreds of thousands of pages in civil codes. In common law nations like America our laws tend to be more general and we expect Courts to fill in the many of the specific gaps, with the result being hundreds of thousands of pages of appellate case law.

That Constitutions tend to be such relatively short documents, with many provisions written in broad generalities, like "cruel and unusual punishment," or "the freedom of speech" signifies a specific intent on the part of the Framers to construct a document with "built in flexibility" whose meaning could change over time.

Back to your $1,000 example. Here's a more reasonable one: Let's say a landowner rents out a huge parcel of land to a community for 200 years. The landowner is to charge the community a "reasonable" amount from year-to-year.

So 125 years later, what's a "reasonable" amount? That's what Constitutional Interpretation is like.

See this post on my blog here for a more detailed argument.

Boy, Arturo, you're not very free with the leeway that you allow others. Why are my only options to "believe that good consequence necessitate unjust decisions" or "that the Dred Scott decision was just"? Can't I believe that just and unjust decisions alike can have good consequences, bad consequences, or (more often) a mix of the two?

Frankly, Jon, I see no more or less truth to your assertion that "no reasonable person could argue over the meaning of $1,000" than I see in the suggestion that no reasonable person could argue over the opposite-sex meaning of marriage. Sometimes I question their reasonability, but people do argue about the latter meaning.

"yet we don't see these as a threat to the intitution of marriage itself. "

I do. I just don't see how we can ban those types of marriages without inappropriately intrusive measures by the government. Well, that's not quite true, in those particular cases. We could require a waiting period in the Spears case, and we could have specific laws against the Letourneau case (but that would affect who, just that one couple?) Namely, banning marriage when one of the couple had been convicted of statutory rape and/or sexual abuse against the other member of the couple. But clearly we don't have justification to ban all "May-December" marriages.

Jon Rowe, i think the simple point here is that consent to legalize SSM was never granted, when we the people consented to equal rights for women and blacks. Those amendments would never have passed, if they had also included a right to same-sex marriage, so its ridiculous to assert that they always included such a right.

We the People DID not consent to that, and it's clear that we DO not consent to that, as each time a judge tries to say otherwise, the push to amend the constitution in explicit terms gets just that much stronger.

Arturo,

"1. The important thing about the Dred Scott decision was that it supported slavery, and that it supported “the will of the people” (and that it did so based on a strict interpretation of the constitution). A more enlightened judge, who believed in affording respect and dignity to the black person (against the will of the majority, but in keeping with a people that was becoming more enlightened),"

I don't know for sure (I don't know if anyone does, precisely), but I think it is far from clear that Dred Scott supported the will of the majority. Clearly the Northern states had a higher population at the time. I realize that many people in the North prior to the war had a "I don't care" attitude towards slavery - sort of like the "personally opposed, but I support a woman's right to choose" in regards to abortion today. But I think Dred Scott said that you couldn't even ban slavery in the new territories, which I think most people were in favor of.

"It's that we clearly see that your arguments are fundamentally based on denying the homosexual person his dignity."

Can you elaborate on this a little? What is the basis for human dignity, and how is it being denied by objecting to SSM?

Justin wrote: “Or it might have exacerbated the rift, leading to a longer, more fierce war or even an actual separation of the states. Historical what-if is a lot of fun, but it's almost as difficult to predict what would have happened as it is to predict what a given change will do now."

------- Very true – it is difficult to predict what a given change will do now or in the future. Along those lines, the opponents of SSM need to be stop asking for assurances that there won’t be a catastrophic effect by enacting it. It’s a rhetorical and downright silly argument. It can be used against the enactment of any change or policy. Based on it, no change or policy should ever be enacted due to “we don’t know what the effects will be?”.

Justin wrote: “Funny that supporters of same-sex marriage have so little respect for what they do not know in both cases.”

------- ... and opponents of same-sex marriage show little respect for what they do not know.

R.K wrote: “Let us suppose that it were possible to allow the legal marriage of gay couples.....without in the process changing the public perception of marriage as between opposite sexes. Would you accept this, that is, would you be willing to accept retaining the general public perception of marriage as between men and women if individual gay marriages were legally recognized?

Marty wrote: “I'm really not so cold to the very real challenges that gay people face, least of all those posed to their unfortunate children. But there are two things standing in the way for me:
1. Resentfulness at this whole "equality" business. What is being demanded here is not equal treatment, but a very special case ...

------- To borrow a phrase from Ben: What a remarkable exchange !

R.K and Marty – If SSM were enacted, then it would be legal for couples to marry regardless of gender. Just like it is legal for a 15 yr old to marry an 85 yr old – despite the public perception of marriage. Just like it is legal for an interracial couple to marry – despite the public perception of marriage.

I guess where I’m going is … your perception of marriage is irrelevant. Just as irrelevant as those who feel the public perception of current marriage law is flawed due to the denial of SSM.

So in your view, homosexuals cannot be either male or female – it is its own gender. Either that or male/female denotes an distinct orientation akin to being 'homosexual'. Just clarifying the physiology lesson.

"when we the people consented to equal rights for women and blacks."

The problem is that you only "consented" to give women the right to vote. All of the EPC's jurisprudence gauranteeing equality rights to women is just as "unoriginal" as same-sex marriage would be.

Also, regarding what was consented in 1868 for blacks, the end of segregated schools is debatable. Michael McConnell makes a decent case, Bork makes a poor case that Brown was consistent with what you would call "original intent." Other scholars like Lino Graglia and Raoul Berger make a good case that Brown was inconsistent with original intent.

What is not debatable is Loving. There are no two ways about it: What you think of as "original intent": Did the people who ratified this Amendment realize that they were ratifying a ban on interracial marriage? The answer is "no." The 14th Amendment was ratified upon the reliance by the folks who voted for that Amendment that they weren't outlawing interracial marriage.

But keep in mind that Loving wasn't decided until 100 years later, until all but in the ballpark of 15 states got rid of their ban on interracial marriage. Were the Federal Equal protection clause to be used to nationalize gay marriage, it ought not be done until roughly the same number of states have recognized gay marriage.

MM: So in your view, homosexuals cannot be either male or female – it is its own gender.

That's not at all what i said. Well, i can see how you might have read it that way, but no, not even close to what i meant. No bother though, a minor detail that i probably should have left off.

Jon,

"The problem is that the phrases that we argue over are all written in broad generalities, and the Framers left behind no "book" of specific intent that tells us exactly how the norm is to be applied vis-a-vis every single thinkable specific factual scenario."

But that is the point - we're a long way from arguing about the meaning of particular phrases when we get into "emanations from penumbras". And Marty is right - you can't honestly extrapolate from "there's a gray area here" to something it's obvious the writers would never have intended or countenanced, like abortion or SSM.

Also, I'd like to hear your response to this article on the demographics of Europe. Does this sound like a "a truly vibrant culture" to you?

Just to clear the matter up for MM:

I said "[proven that] the partners are indeed biologically homosexual (as something clearly distinct from male or female)"

By which i mean that regardless of male/female, it must be proven that "orientation" is something distinct from, and as important as, one's sex. I'm not at all impying that gender comes with any presumed orientation -- i'm saying that i do not think one's "orientation" is really even relevant to the question of marriage, while one's sex is critical.

Lik i said, i probably should have left that parenthetical part off. It adds little but confusion to what i stated.

"And Marty is right - you can't honestly extrapolate from "there's a gray area here" to something it's obvious the writers would never have intended or countenanced, like abortion or SSM."

It's not so obivious. One reason why the framers wrote in such broad generalities, is that they wisely realized that they didn't possess all of the information to give all, or even many specific factual answers to such general constitutional principles. For instance, the framers didn't say that pornography was or was not protected speech under the First Amendment; it left that question specifically unanswered, but rather said that government was to "make no law...abridging the freedom of speech."

Although the framers knew of had laws against the act of "sodomy" (and there evidence that what they thought of as sodomy was an unconsensual act -- and many sodomy laws also applied to heterosexual behaviors that are completely normalized today), they did not know of homosexuals who could flourish in meaningful relationships with one another. This is not to say, as some argue, that the "homosexual" as a constitutive identity was completely unknown until recently. But for the framers of the original Constitution or the 14th Amendment to know of homosexuality in a way *remotely* close to the way we understand it today, they would have to go back into the writings of antiquity to, for instance, Plato's Symposium and the metaphor contained therein for eros and sexual orientation which seemed to put homosexual love on an equal footing with heterosexual love. There is no evidence as far as I know of any framer reflecting on those provisions of Plato's work.

Yes, that does change the meaning from what I had originally thought. I now understand your intent.

That is the big question isn't it ? Whether marriage should be defined as the uniting of two people having distinct and separate genders ? Or should it be defined as the uniting of two distinct people into one relationship regardless of gender ?

One of the big kahuna of questions - at least in my view.

Pure sophistry, Jon, pure sophistry. If we're not bound to respect what the text actually says, and we're not bound to respect the historical meaning of the text, then the Constitution is, literally, meaningless. Given the following two propositions:

1) The framers did not intend to recognize a right to SSM in the Constitution.

and

2) The people of the United States have not ever voted for, and do not now want, SSM.

How can you possibly argue that it is justified, as a matter of constitutional law, for a judge to declare that all of a sudden, in 2005, the state must recognize same-sex marriages? I'm not talking about arguing that as a matter of justice, we should recognize SSM, I'm talking about as a matter of constitutional jurisprudence. There is simply no intellectually honest way to argue this - all you are left with is the claim that judges are entitled to read their own preferences into the constitution. Which, as has been pointed out numerous times, is simply a soft form of tyranny. (Which is not so soft in cases like abortion or Terri Schiavo.)

The big kahuna of questions: "Or should it be defined as the uniting of two distinct people into one relationship regardless of gender?"

At times like this i always point out that two halves do not neccesarily create a whole. It takes two opposite halves do that.

There is also the well-worn cliche that "the sum is greater than its parts" -- which is perfectly consistent with the innate procreativity of a man+woman union, and perfectly irrelevant to any same-sex union.

Note that neither of these holistic concepts take "orientation" (of any sort) into the least account.

Mike S. wrote: "How can you possibly argue that it is justified, as a matter of constitutional law, for a judge to declare that all of a sudden, in 2005, the state must recognize same-sex marriages? I'm not talking about arguing that as a matter of justice, we should recognize SSM, I'm talking about as a matter of constitutional jurisprudence."

I needed to say this based on our past experience. I agree, Mike. Well almost. I agree that there is not *clear and obvious* constitutional jurisprudence (such as sex discrimnation) that says SSM should be enacted. But, as I've said before, I think there is more weight behind the argument that SSM is a denial of a right based on equal protection than there is behind the decision that eliminates the death penalty option for people under 18. More, not enough in my view. The debate for me is about the justice ad to refute some of the arguments made - well, on both sides. Playing both sides can be fun.

Marty: I understand your point. All I am saying is maybe the definition of 'opposites', in terms of relationships, may not be limited to gender alone.

Also, I do not buy into the procreative argument. Simply put, procreation is an potential outcome of marriage. I do not see where the ability to procreate currently is or should be a factor in determining what a legal marriage.

Why does this sort of construction keep popping up?

Simply put, procreation is an potential outcome of marriage.

No. Procreation is not "a potential outcome of marriage." Procreation is a potential outcome of sex between two people of opposite sex. Sperm and egg do not halt in their functions because the people of whom they are parts are not married. That is why it is important to maintain the link between procreation and marriage.

By the way, Barbara Boxer recently articulated the Left's disdain for the US Constitution when it doesn't suit their purposes:

Why would we give lifetime appointments to people who earn up to $200,000 a year, with absolutely a great retirement system, and all the things all Americans wish for, with absolutely no check and balance except that one confirmation vote? So we're saying we think you ought to get nine votes over the 51 required. That isn't too much to ask for such a superimportant position. There ought to be a super vote. Don't you think so? It's the only check and balance on these people. They're in for life. They don't stand for election like we do, which is scary.

See? It doesn't matter that the Constitution says a majority vote is required to confirm judges - she thinks it should be 60 votes, so she's going to go with that number (does anybody doubt the number would be different if the number of votes required to overcome a filibuster were different, as it used to be?). Nobody believes there is any kind of principle behind this argument - it's pure political calculation.

Mark: Marty: I understand your point. All I am saying is maybe the definition of 'opposites', in terms of relationships, may not be limited to gender alone.

True enough, of course -- gender(sexual) oppositeness is the bare minimum for a valid marriage. It is procreative in the barest of abstracts. Sometimes in these arguments you get the feeling that SSM supporters would be happier if we actually barred infertile couples from marrying, or old people beyond their reproductive years. But we don't do that -- why? Not because they cannot procreate -- but because of Freedom and Equality! Yes, marriage is about procreation. Yes, we live in a free country where all people are created equally. So while we legally (well, constitutionally) could bar non-procreators from marriage, we don't. All you have to do is meet be barest of abstract requirements, and you're in. Simple as that.

Yet even that is too high a standard for people who harbor resentment over their substandard sexuality, and would have us lower the standard of marriage (which they could easily meet, if they only chose to) to a point where it is completely meaningless.

We're argueing several related yet separate issues here:

1) Would legal SSM be beneficial to our society, detrimental to our society, or neither benefical nor dtrimental?

2) Is the interpretation of the Constitution that prohibits banning same sex marriages a valid interpetration?

While you know where I stand on the first question, I'm not so sure on the second. The US Constitution doesn't explicitly define the prerequisites marriage, so it would seem to be a issue states can decide for themselves. Enter "equal protection under the laws." Gays and lesbians are not permitted to marry the people they have comitted relationships with, so they don't feel "equally protected." But on the other hand, gays and lesbians are free under the law to marry persons of the opposite sex, so in this sense they do have equal protection.

But SSM marriage is clearly something many people would not accept. I'm not even sure if it would pass a general vote in Massechusettes.

So again, how about creating a legal status two people of any gender called "partnership," that will offer equal protection under the laws. Then to respect the majority of people in many places, reserve the term "marriage" for those who at least might have their own children?

Dancar,

So again, how about creating a legal status two people of any gender called "partnership," that will offer equal protection under the laws. Then to respect the majority of people in many places, reserve the term "marriage" for those who at least might have their own children?

Various members of the anti-SSM camp here have voiced various degrees of support for various type of civil unions arrangements. You can find some of those positions and arguments if you search the archives. My general position is that if you make civil unions in order to mimic marriage, you have to make the available to bothh gays and straights (or, practically, that is what will happen), which will have the effect of weakening marriage. However, I'm OK with passing various measures to accommodate homosexual couples piecemeal. But I would rather those laws include various other relationships as well, such as a daughter and elderly mother living together. Also, in many cases, like I said, gay partners can gain all or most of the legal benefits of marriage now - it just requires work on their part and is not considered automatic as it usually is with married couples.

Like I said, most of those advocating for SSM aren't really that interested in these benefits per se - what they really want is the societal recognition and affirmation of their relationships. So generally speaking your solution is a nonstarter for both sides: if it's too close too marriage, conservatives won't support it, and if it's not close enough to marriage, liberals won't support it.

Justin says: “No. Procreation is not "a potential outcome of marriage." Procreation is a potential outcome of sex between two people of opposite sex. Sperm and egg do not halt in their functions because the people of whom they are parts are not married. That is why it is important to maintain the link between procreation and marriage.”
------- I should have prefaced my statement with “As far as the link between marriage and procreation is concerned ….” I am aware that procreation can occur outside of marriage and marriage can occur and exist without procreation. But I think that the primary link that our culture should support is the link between parents and their children - regardless of whether the link is biological or not.

Marty says: “Sometimes in these arguments you get the feeling that SSM supporters would be happier if we actually barred infertile couples from marrying, or old people beyond their reproductive years.”
------ Not happier or even in agreement. But at least I would see the procreative argument as consistent. But in your case, you’re not really making the procreative argument, you’re making the ‘opposite sex’ argument.

Marty says: “Yet even that is too high a standard for people who harbor resentment over their substandard sexuality, and would have us lower the standard of marriage (which they could easily meet, if they only chose to) to a point where it is completely meaningless.”
----- Based on our significantly different views of homosexuality, there seems to be no value in even attempting to bridge this gap. (and I‘m showing a lot of restraint and nuance here) Yet I believe that legally acknowledging same-sex relationships results in a higher standard, not a lower one.

The issue is one of policymaking, not constitutional revision. The SSM side are "johnny-come-latelies" who have barged into the long-struggle to strengthen marriage. The concept of SSM is made more plausible, in propagandic terms, with the negative direction of trends in family formation/dissolution. If the trends were going in the other direction, SSM would not be imaginable. Also, as society has increasingly demonstrated acceptance (if not approval) of homosexuality, these various legislative measures have been used to drive a legalistic wedge between marriage and procreation.

This makes it hard to understand how enactment of SSM can be motivated by a desire to join marriage as collaborators in strengthening the social institution. The basic argument seems to be that marriage is a shell of its former self so let's make it official, enshrine that tidbit in the Constitution through a misapplicaton of the equality doctrine, and count a victory, not for marriage, but for the affirmation of homosexuality.

>> [As far as the link between marriage and procreation is concerned], procreation is a potential outcome of marriage. I do not see where the ability to procreate is currently is or should be a factor in determining what [is] a legal marriage.

In simplistic market terms, there is the consumer of a product and there is the producer of that product. And there is the prosumer who both produces and consumes the product. The concept of an economic transaction is not my meaning here; the complementary aspect is.

Men and women are procreators. One does not produce sperm and the other consumes it; one does not produce eggs and the other consumes it. Apart, they cannot create life. Apart, they cannot sustain their society. Together they pro-create. And as a society, what men and women pro-create all of us both provide for and benefit from. We are bond to each other through this pro-creation.

And not just men with women. The mysteries of giving life, in creating one flesh, make of men and women pro-creators in cahoots with something beyond themselves. Men and women play the mortal part in creation. They - or rather We -- do this in our daily effort and in that effort we grow from a speck, to infancy, maturation, and we diminish until we are taken away. What we leave behind, or rather who we leave behind, are us but not us, a part of us but also apart from us.

In this way our human physiology reveals the arbitrary duality of mankind and womankind. Together we procreate humankind. This is not a social construct. The social construct is marriage itself. Marriage is our cultural adaptation to the abritrary means by which one generation preceded another and another follows. This is humankind's pro-creative model.

Societal supports for marriage might vary across time, geography, and cultures. However, the man-woman combination is as universal as its core purpose. The pro-creative bias is not an anti-homosexual bias. Marriage is society's contingency for offspring -- born planned or unexpectedly.

None of us are conceived as orphans, but each of us might have become orphans. Adoption, like marriage, is a cultural adaptation and it imitates procreation. As a couple might bear their own child, they might raise an orphaned child. As a widow might raise her fatherless child, a single woman might raise a parentless child. As with a widower and his motherless child, a single man and a parentless child. But as with widowhood, adoption is open to the marriage of single men and women who have adopted. And although that might be unrealized, adoption would not bar an unwed individual no more than it would remove a widowed parent from his or her child.

And yet as a society we comprehend that adoption is for the sake of the child, not the exercise of an adult's right to raise a child. We have a societal expectation that a parent is "owned" by his or her offspring, not the other way around. Marriage is the expression of that expectation: men and women are bonded together with their children for the sake of the children.

Parental status does not bestow marital status. Marital status includes the right of a husband and wife to procreate within their marriage. This outcome is not assured at the outset, and may not be realized in each and every instance, but marriage presumes the mating of man with woman (i.e. the procreative act of sexual intercourse) and provides a home for children not presumed to be orphans at conception.

>> [T]he primary link that our culture should support is the link between parents and their children - regardless of whether the link is biological or not.

Almost all adults marry and almost all marriages have children. There are negative trends in extramarital sexual relations, unwed cohabitation, nonmarital childbearing, and divorce; these have eroded our marriage culture first in the very idea of marriage and second in the practice of that idea. So today instead of upwards of 98% of us marrying, something like 90% will, and if census forecasts are correct, people in their twenties today will marry to the tune of about 80% in their lifetimes. But there are some signs that these negative trends have at least stalled and may yet be reversed.

Marriage is our procreative model. The man-woman criterion of marriage perfectly expresses this as objective truth. The parental link is the biological link; but it is also the cultural link as acknowledged in the marriage idea. It is not enough to bond child to mother, or child to father, or father to mother. The familial bond that arises from the procreative model (even if through adoption's imitation of procreation) is what gives weight to the state's civil marriage law.

It is not the state that creates marriage. The state creates the civil laws that acknowledge and support marriage. Without legal incidents and benefits, marriage would persist in society. But given the negative trends, the least that a self-governed society can expect of the state is that the state do no further harm to this social institution.

Earlier someone mentioned alternatives to marriage. I agree that there may be justification for some form of bundled legal incidents and benefits for domestic arrangements that include nonmarriagable combiantions. These arrangements need not presume sexual relations but would be based on specific caregiving relationships -- with emphasis on the parental responsibility toward children in the household.

This turn of the discussion would take us farther from the kerfuffle over newly asserted rights to a newly espoused unisexed model of domesticity, and take us back to the legislative arena where elected representatives enter the public square to discuss policymaking.

That's where minority rights and majority rule are properly accomodated on matters of social reform. But SSM advocates are true believers in making social reform through legal bluster. And certain Courts are prone to march at the head of that parade.

Mark Miller, showing restraint: Yet I believe that legally acknowledging same-sex relationships results in a higher standard, not a lower one.

A New Standard is not a result of same-sex marriage -- it is what will allow it, or not, to happen. Allowing any two persons of any sex to marry is a lowering of the existing standard -- one that is already plenty low (just about everyone agree's it is too low). So how can you claim that removing the opposite sex rule actually raises the standard by which people are judged fit for marriage?

And please, don't restrain yourself on my account :)

"and almost all marriages have children"; that's way too broad of a statement. Given the significant numbers of divorces and remarriages into older age, there is a much more than nominal number of "marriages" with no children, like Mr. and Mrs. John Kerry, Mr. & Mrs. Bob Dole., etc.

Plus what are we going to do, perhaps not too far into the future, when science makes it possible for 2-men or 2-women to procreate with one another? Is that the time to allow gay marriages?

Thank you for this, Jon:

Plus what are we going to do, perhaps not too far into the future, when science makes it possible for 2-men or 2-women to procreate with one another? Is that the time to allow gay marriages?

It really serves to highlight the degree to which various issues on the table (or soon to be there) line up along two incompatible worldviews; try as they might, people cannot pick and choose among the various facets.

Just as those who supported a right to contraception within marriage were largely unaware that they were laying the groundwork for the normalization of homosexuality and the redefinition of marriage, not many among those who support same-sex marriage are aware that they are laying the groundwork for cloning and the further commodification of life.

Not surprisingly, the redefinition of marriage is related to the redefinition of humanity. The laws of nature must be rewritten so that no human being need deny, or even keep in social perspective, his desire.

Chairm wrote: "The basic argument seems to be that marriage is a shell of its former self so let's make it official, enshrine that tidbit in the Constitution through a misapplicaton of the equality doctrine, and count a victory, not for marriage, but for the affirmation of homosexuality."
---- I don't buy the 'marriage is a shell of its former self" part but I'll admit the intent is more about the normalization and acceptance of homosexuality (as opposed to "affirmation of").

The pro-creative bias is not an anti-homosexual bias.
------ I agree with this.

Marriage is society's contingency for offspring -- born planned or unexpectedly.
------ I agree that this is ONE of the functions of marriage. But not the only one, not even the primary one, and not one where the lack of should deny marriage. This is where we differ.

Parental status does not bestow marital status.
------ This is a good point. Currently, two people can be legal parents but not be allowed to have any legal recognition of their relationship. I guess I feel that parental status should afford the legal opportunity to obtain marital status.

Almost all adults marry and almost all marriages have children ...so today instead of upwards of 98% of us marrying, something like 90% will, and if census forecasts are correct, people in their twenties today will marry to the tune of about 80% in their lifetimes.
------ What is your point here ? That since a majority of people marry and a majority of those procreate that this justifies denying marriage based on inability to procreate ? Not a good point.

Earlier someone mentioned alternatives to marriage. I agree that there may be justification for some form of bundled legal incidents and benefits for domestic arrangements that include nonmarriagable combinations. These arrangements need not presume sexual relations but would be based on specific caregiving relationships -- with emphasis on the parental responsibility toward children in the household.
----- Ironically I don't agree with these as in my view, this would result in the watering down of marriage more than including same-sex partners. To me, it is not you who are defending 'marriage' - because given the choice of ending marriage for all or including same-sex partners to the fold, you would rather end it. To me, that says that your view is more anti-gay, than pro-marriage. But I bet I know your response .. that it is impossible to be both accepting of gay relationship and pro-family/marriage.

Marty: Currently, there is no standard or criteria for being "fit" for marriage. As has been noted, even homosexuals can marry - as long as they marry someone of the opposite sex. So to me, allowing SSM would neither raise nor lower the standard. My point was that legally acknowledging same-sex relationships is a positive step - but I see where I made it very clumsily. As far as restraint, I'm married with children - restraint is a big part of life. :)

"Not surprisingly, the redefinition of marriage is related to the redefinition of humanity. The laws of nature must be rewritten so that no human being need deny, or even keep in social perspective, his desire."

Personally, I think one of the great inventions of Western society is the science that allows us to transcend nature. Up until recently virtually every couple knew what it was like to lose a child shortly after childbirth; now that's the exception, not the rule.

Isn't getting a bug, a germ and dying part of the natural process?

From talking to many women, childbirth itself is not too fun an experience; but it's simply part of reality. So if you want kids, you deal with it.

I look forward to the day when babies are born in artificial wombs because that's going to save the women of this world so much pain.

Chairm: Marriage is society's contingency for offspring -- born planned or unexpectedly.
Mark: I agree that this is ONE of the functions of marriage. But not the only one, not even the primary one, and not one where the lack of should deny marriage. This is where we differ.

We all agree that "stability" is also a social good that is encouraged by marriage, but have you ever asked yourself why? It's not because two adults need help surviving, it's because they're so darned likely to have kids! The kids demand and deserve a stable home. But during the past few decades, we've certainly seen that "stability" is relative, even when there are kids involved! If the government is involved in promoting family stability, it's because of the weakest members of the family. You can't say that procreative aspect of marriage is not primary, while simultaneously holding up kids of gay couples as a reason to demand access.

The very idea of SSM neuters marriage of its primary aspect, family. And as we've already witnessed in this thread, SSM could very easily pave the way to a "right" to the frankensteinish same-sex reproductive technology that is coming our way.

Meet Kaguya

Currently, there is no standard or criteria for being "fit" for marriage.

Sure there is. Actually there are 4, give or take an arguable point:

1. The partners must be of age. (state laws vary)
2. The partners must be mostly unrelated (state laws vary)
3. Neither partner may be already married. (state laws are unanimous)
4. The partners must be opposite sexes (state laws are unanimous, aside from judicial activism)

Remove any one, and the bar is lowered. Add another, the bar is raised. And i see no reason why number 4 is not subject to state regulation, any more or less than the other 3. There is no "civil right" to break the unanimous rules of marriage and procreation -- but we can create one if we want to. But that's We -- The People. Not Your Honor.

I look forward to the day when babies are born in artificial wombs because that's going to save the women of this world so much pain.

Please tell me you're joking.

Just as those who supported a right to contraception within marriage were largely unaware that they were laying the groundwork for the normalization of homosexuality and the redefinition of marriage, not many among those who support same-sex marriage are aware that they are laying the groundwork for cloning and the further commodification of life.

Slippery slope, schmippery slope. Not many among those who supported women's sufferage were aware they were laying the groundwork for contraception during marriage. And many among those who suppored emmancipation were aware they were laying the groundwork for women's suffrage which laid the groundwork for contraception which laid the groundwork for queer's wanting legal recognition of their relationships and some human dignity. So maybe we should just go back. Hell, let's go back to the monarchy because the Revolution laid the groundwork for all of this.

Each issue must be delt with on its own, Justin.

“We all agree that "stability" is also a social good that is encouraged by marriage, but have you ever asked yourself why? It's not because two adults need help surviving, it's because they're so darned likely to have kids!”
------- I don’t agree with your reasoning as to why "stability" is a social good. It is very much related to the stability and mutual caring aspect regardless of whether children are involved. If your way were true, “marriage” would have no value until children become involved.

“If the government is involved in promoting family stability, it's because of the weakest members of the family.”
------- I’m not really sure what you mean here. Is it that the government should promote family stability because of the children ? I agree. But why can’t that apply to families with same-sex parents ?

You can't say that procreative aspect of marriage is not primary, while simultaneously holding up kids of gay couples as a reason to demand access.”
------- Why can’t I say that ? I must be missing something.

The very idea of SSM neuters marriage of its primary aspect, family
------- Again, I don’t see how that works. But I happen to feel that ‘family ‘ can, does and should include same-sex couples - whereas you feel otherwise.

Sure there is. Actually there are 4, give or take an arguable point:
Age, unrelated, not already married and opposite sex.
Remove any one, and the bar is lowered. Add another, the bar is raised.
------ Ok, there is criteria but I was thinking more along the lines of “fit” defined by financially or emotionally, etc - but your point is taken as far as existing criteria. So would you support adding any criteria - thereby ‘raising’ the bar ? Same race was a criteria at one time. Did eliminating that “lower” the standards ? Would adding ANY criteria result in strengthening marriage in your view ?

“And i see no reason why number 4 is not subject to state regulation, any more or less than the other 3.”
------- I agree that #4 may be subject to state regulation and as far as I know, it still is, as shown by the states have the amendments banning legal recognition of same-sex couples and those like MA or VT.

Also, regarding Michael's last comment to Justin:
---- Well said. My sentiments exactly.

Oh and regarding Marty's comment to Jon about babies being born in artifical wombs:
---- I concur with you. I actually hope he's joking too.

I look forward to the day when babies are born in artificial wombs because that's going to save the women of this world so much pain.

Save them pain, but cost them what?

Jon said,

""and almost all marriages have children"; that's way too broad of a statement. Given the significant numbers of divorces and remarriages into older age, there is a much more than nominal number of "marriages" with no children, like Mr. and Mrs. John Kerry, Mr. & Mrs. Bob Dole., etc."

What are you saying, that it's a good idea for marriage to be totally unrelated to procreation and child rearing? That that is already the case? Where will the next generation come from, and who will raise it if not their parents?

"Personally, I think one of the great inventions of Western society is the science that allows us to transcend nature. "

But we don't "transcend" it, we manipulate or control it. Sometimes this is a good thing (antibiotics), and sometimes it isn't (using pesticides to kill Jews efficiently). Almost every technological advance has good and bad consequences. Sometimes these are obvious, and sometimes not. This is also not new - humans have always done this - what has changed is the power and efficiency with which we can manipulate nature. Which carries with it a correspondingly important responsibility to make prudent choices about which technologies to pursue, and how to use them once we have them (see, nuclear weapons). Your flippant attitude that effectively says, "hey, if we can do it, let's try it!" is the height of irresponsibility.

Michael,

"Not many among those who supported women's sufferage were aware they were laying the groundwork for contraception during marriage."

Are these things really that strongly linked to each other? Certainly there is no logical connection between the right to vote and the "right" to use contraception. The liberalization of contraception and abortion laws is frequently portrayed as part of the "emancipation" of women, but I think that both of those movements were driven just as much by men interested in increased sexual freedom as by women. Also, even if they had, in fact, been driven by women's rights, it's a seriously open question whether such changes actually have made women better off.

Each issue must be delt with on its own, Justin.

You might have a point were you working through legislative means. If you're working through the judiciary to demarcate Constitutional rights — i.e., the people don't have a say — then you don't have the liberty to deal with each issue on its own. Judges look backwards to precedent, so even if you believe that they ought to be empowered to adjudicate social norms, you'd do well to require them to consider what precedent they are setting with current rulings.

Especially if we're discussing such things as "rational basis." What you're suggesting is that we must judge a rational basis while ignoring broad swaths of possible consequences that help to make a particular policy rational.

If you are interested I wrote a post defending artificial wombs in more detail here.

Mark: So would you support adding any criteria - thereby ‘raising’ the bar ?

Absolutely. First, i'd start taking adults at their word when they pledge "Til Death Do Us Part" in front of God and/or a Judge. As lightly as such committments are being taken today, they are all but meaningless, legally.

Second, one of the ways i'd enforce that, is setting a limit on marriage, ie: If you've married and divorced more than once (broken the vow above twice), you would be ineligible for yet another marriage. And i'm being very generous here, by granting two strikes, instead of expecting you to mean it when you pledge forever.

Jon Rowe, who doesn't have comments on his blog, but beleives children should be incubated inside machines, said: And no one should force those parents who want to do it the "natural" way to use artificial wombs. Although one day, natural childbirth might be regarded as a much riskier thing to do. Women are still dying from complications in childbirth you know.

Since you are far-sighted enough to see that someday artificial incubation may become far safer than natural pregnancy, how then would you propose that "We the People" could stop a future government from mandating that all pregancys be incubated this way? Especially considering that "We the People" don't seem to be entitled to a voice in such matters, even today?

What could stop such a tyrannical government from seizing total control of procreation, by such a simple (and it's for the kids!) mandate?

Yes, i know we're delving into science fiction here, but you're old enough to know: todays sci-fi is tommorows "Ask the Ethicist" column...

To tell you the truth Marty, if government works the same way at that time period as it does now, the liberty to partake in natural child-birth is far liklier to be restricted by a democratically enacted statute expressing the "will of the people" (yeah -- how many of those thousands of pages in the federal register really represent the will of the people) and far liklier to be protected by a court striking down the statute under the theory of "substantive due process."

Utter speculation on both our parts Jon, and a conversation i'd love to have -- but probably not here. This gets into God, Huxley, and could even relieve what i see as a bias against men who currently have NO reproductive rights -- simply because they have no womb.

But i'm not an athiest, so i do have ethical issues with playing god. And I get that others don't have this dilemma, and are perfectly fine pretending to be god.

Dancar wrote (a ways up now):

"The large majority of people are hetersexual, therefore, if SSM is legalized, the large majority of married couples will be heterosexual. Most, if not all, of the married couples you personally know would be heterosexual. So I don't know why the public perception of marriage as being between a man and a woman - at least most of the time - would change."

Here we have it again---the neat grouping of the population into two well defined, distinct camps of 100% heterosexuals and 100% homosexuals, which everyone knows is not based on reality.

Don't deal with the thorny issue of bisexuality, with what percentage of the population is potentially bisexual, with whether or not SSM will cause a higher percentage of this group to become actively bisexual, and whether or not this will cause a change in the public perception of marriage as we see more and more cases of people marrying first one gender and then the other, slowly but surely creating an image of interchangeability. Sure, there will probably always remain a core of die-hard heterosexuals, but this group will become less and less determinative of the public perception, which is shaped more by Hollywood than by small-town rednecks.

I will predict that if SSM is legalized, within fifteen years we will see a massive increase in bisexuality, particularly among the young. And this will change perceptions a lot.

But my question to SSM supporters was not whether they think the public perception of marriage will change, but whether they think it should change. Or, more specifically, whether or not they would be satisfied if somehow SSM could be legalized and the perception of marriage remained as it is. For instance, do they approve of Massachusetts eliminating the terms "husband" and "wife" and replacing them with "Party