After slogging through the Ninth Circuit’s lengthy opinion overturning Proposition 8, I must confess that I’m confused. Does the definition of marriage matter? Or does it not? To the court the answer seemed to depend on whether the argument for marital significance helps or harms the case for gay marriage. When discussing the power of marriage to provide dignity and meaning to relationships, the court waxes eloquent (see pages 38 and 39 for an extended paragraph about the significance of the word “marriage” to communicate meaning and purpose in relationships). Yet when the time comes to evaluate the justifications for reserving “marriage” to opposite-sex couples, the word suddenly means virtually nothing, with domestic-partner statutes draining the word of any real-world effect. Marriage can provide a liberty interest (because it’s important!) but not a state interest (because it’s meaningless!).
We’re left with an odd conclusion: Marriage matters a great deal, but it has no effect on child-rearing decisions. Marriage is significant, but changing its definition won’t impact religious liberty.
The bottom line is the word “marriage” matters, as a matter of law, tradition, and definition. The fight over gay marriage is so contentious precisely because marriage has such a profound impact not just on the individual lives of those who choose to marry but also on our cultural and national destiny. And of course the fight over marriage is not confined to gay marriage but also extends to the much longer-running and ultimately far more consequential conflict triggered by our nation’s pre-existing move to no-fault divorce — a move that set the stage for gay marriage by essentially redefining marriage as a union existing for the fulfillment and enjoyment of adults.
Stay tuned. The Ninth Circuit has had its say. Will the Supreme Court weigh in next?
"Gay marriage"
"Illegal immigration"
Self-contradictory phrases that hand victory to the Destroyers.
We must stop using these phrases, Winston Smith.
Reply to this commentLinkReport AbuseIf marriage is simply a vehicle by which love is acknowledged between individuals how can polygamy be prohibited in the future?
More than two people can love each other. They may or may not want to have intercourse. They may or may not want to have children in one fashion or another.
Two homosexuals can love each other. They may or may not have sex with each other. They may or may not want to have children in one fashion or another.
If marriage can be redefined to accommodate two people who MIGHT be homosexual (they might not be, right?) because they have the individual right to have their preferred type of union be recognized as "married" by the state how in the world can polygamy be banned on any conceivable grounds?
If polygamy can be deemed not "marriage" by the state then other, non-traditional, unions must be similarly subject to restrictions on individual's civil rights to have their type of love recognized as "marriage".
If the definition of marriage is simply love and it is a civil right to love anyone (and everyone) you choose then how is it possible to ban polygamy without violating some individuals' civil rights yet accept another version of love between people? Sexual orientation doesn't matter. So why should any arbitrary number?
Reply to this commentLinkReport AbuseAn arbitrary number matters because it doesn't help the case for same-sex marriage. Once same-sex marriage is established beyond any reasonable hope for repeal, the same folks will decide number doesn't matter either.
Reply to this commentLinkReport AbuseRight. And indeed it doesn't stop there. How do you deny "marriage" benefits to two cousins who love each other. I'm not suggesting that they are engaged in incest, mind you, but just that they are two people who love each other, and want the right to visit one another in the hospital or to adopt children or what have you. You ask about polygamy, but what about even more inventive forms of "marriage" relationships, like five men and five women, who are very comfortable with one another? Shouldn't they all be able to visit each other in the hospital and adopt children and etc.?
Some will say, oh, now, you're just being ridiculous. That would never happen. These slippery slope arguments should not be used to oppose THIS obviously good thing. But the answer is that if we listened to slippery slope arguments before now, we wouldn't have to worry about the effects of today's decision. The whole point of domestic partner legislation was to address the supposed inequities; anyone who thought it would LEAD to homosexual marriage was obviously a nut. But, today, the very fact of domestic partner law is being used as the reason why voters could not limit the scope of marriage in the same way as it has been limited throughout history and throughout the world.
Reply to this commentLinkReport AbuseSlippery slope arguments are to be dismissed right up until the point where they can be used to justify the next judicially-mandated revision to our culture. For further background, see how attempts to compromise on this issue with civil unions and domestic partnerships were later used as justification for same sex marriage.
Reply to this commentLinkReport Abuse"We’re left with an odd conclusion: Marriage matters a great deal, but it has no effect on child-rearing decisions. Marriage is significant, but changing its definition won’t impact religious liberty. "
Reply to this commentLinkReport AbuseThe ability to procreate has never been required for a marriage license, so we can't deny one to a same-sex couple when we don't make that demand of opposite-sex couples. And we're not talking about a religious function or body here; this is a government license and a governmental function, that of issuing a marriage license to a couple which may or may not share your personal religion. We issue marriage licenses to opposite sex couples who may not marry under Catholic law every day, yet this is never viewed as a threat to religious liberty, nor should it be. The government is not your or my Church and shouldn't be expected to uphold any given religious sensibilities. I don't see what religious liberty has to do with a civil marriage license.
As far as I can tell, the justification for the ruling hinges on "equal protection."
But it would be a violation of equal protection ONLY if the law forbade homosexuals from entering into marriage at all. And yet, there are millions of gays who are married to members of the opposite sex. They may be miserable or resigned, but because there’s no sexual-orientation text for marriage, there’s no discrimination happening. A gay man and a lesbian can show up for a marriage license, both in drag, both with rainbow flags tattooed on their foreheads, both screaming “we’re gay, we’re gay, we’re gay!” and they can still get married.
So equal protection CANNOT be a legitimate argument for striking down Prop 8.
And yet.
“Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted,” the ruling states.
No “class of people” is being treated differently, as explained above. The law is not being applied unevenly to individuals based on arbitrary characteristics or traits.
The question at hand is the definition of marriage, not sexual orientation. Were marriage to be redefined to exclude one sex, two hetero women or two hetero men would be able to be married.
Again, the law is not being applied differently to gays, so the only issue at hand is whether the SEX of the participants (not their sexual orientation) matters to the definition of marriage.
Which, only a culture that has already degraded and deprecated its understanding of what marriage is for in the first place—that insisted first, "we don't need a piece of paper to prove our love," then insisted that "we must have the paper to prove our love"—that has denied that differences between the sexes go beyond the plumbing, and that accepts casual sex anywhere, anytime, could have a hard time understanding the centrality of sex (gender) to the definition of marriage.
Reply to this commentLinkReport Abusedicentra, that is because gays are playing two different definitions of "discrimination" against each other.
When it suits them, being gay is like being a racial minority. You didn't choose it, you can't help it - you can't discriminate against a guy based on what he has no choice over, right?
But gays are different from racial minorities in that racial minorities do not get to claim any right to special behavior - indeed, the entire basis of their claim is that they are "just like" everyone else. So when it suits them, gays also borrow the rules that protect religious minorities.
The key is to recognize how they switch back and forth between two different sets of rules, dodging the limitations and restrictions of each definition.
Reply to this commentLinkReport AbuseUmmmm. No.
It IS discrimination based on sex. If a man is allowed to marry a woman, but a woman is not allowed to marry a woman, then you are deciding who can marry a woman based on their sex. That is discrimination based on sex.
Do you believe that laws that prevent multi-racial marriages violate equal protection. After all, if every race is forbidden from marrying outside their race, then it can't be an equal protection violation? right?
Reply to this commentLinkReport AbuseAnd if you marry a woman and then, a year later, I am not allowed to marry that same woman, then that is discrimination too. IT'S SO UNFAIR!!!!!
There are all kinds of couples (and other groups of more than two) that we don't allow to marry. Please don't make me list them. Do you want to open the marriage gates to them all?
No? Then you are a discriminator too, and the discussion then should not be about how horrible it is to not extend equal protection, since you yourself make plenty of exceptions to equal protection. The discussion should be about why you want to extend equal protection to a particular demographic.
Yes? Then you are a twisted individual with no right to claim a serious opinion on this issue.
Which one is it?
Reply to this commentLinkReport AbuseThe supreme courts of those oh, so very conservative states New York and Maryland found rational bases for the traditional definition of marriage. If you read the decision of the Maryland Court of Appeals in Conaway v. Deane, e.g., you'll see exactly the template that the U.S. Supreme Court will follow in ruling definitively that there is no federal right to sodomitic pseudogamy.
Reply to this commentLinkReport AbuseThis column echoes something I noticed a while ago. Glad to see someone with the credentials has finally said it. The thing is, the people who just wring their hands over how horribly unjust Prop. 8 is are the very same people who don't seem to think marriage per se is really all that important anyway. They are the very same ones who will tell you it's outmoded and on its way out. So why fight to extend a right to something that you don't think has any value anyway?
Reply to this commentLinkReport AbuseQuote: "To the court the answer seemed to depend on whether the argument for marital significance helps or harms the case for gay marriage."
Good catch. I think that's also behind the courts supposed limiting its ruling just to California, as if nobody ever left the state, and as if there were no nationwide campaign to impose same-gender marriage everywhere, like it or not. In this case, as was noted here on NRO by others, the court seems to be weaseling with an attempt to avoid Supreme Court scrutiny.
Or, as I would be fond of saying if I were rather nasty, "All of you are liars, cheaters, thieves, murderers, molesters, and thespians, with the sole exception of those who might file defamation lawsuits."
Reply to this commentLinkReport AbuseDefenders of marriage neglect to address the fact that what homosexuals are looking for are the societal benefits that marriage grants, in doing that they are also neglecting a very valid argument, what the society gains in exchange for the granted privileges.
Not only is there the procreation factor, but also the protection and continuation of the basic foundation of the society, the civilizing influence on men that marriage and the binding of a man to a woman. We can see evidence of this all this in the impact on society of no fathers in the house as has happened as a result of the rules for the welfare state.
There is no corresponding societal benefit for the granting of the privileges of marriage on homosexuals. The society gains nothing in exchange for significantly damaging the very foundations of the civil society.
Reply to this commentLinkReport AbuseYou need to read the decision. The Ninth Circuit found no such right to marriage. They just said you can't take rights away from one group while leaving them in place for another without a rational basis. Same sex marriage was the law of California at the time Prop 8 passed. I doubt the Supreme Court will even take this case the ruling is so narrow.
Reply to this commentLinkReport AbuseYou need to read the decision. The Ninth Circuit found no such right to marriage. They just said you can't take rights away from one group while leaving them in place for another without a rational basis. Same sex marriage was the law of California at the time Prop 8 passed. I doubt the Supreme Court will even take this case the ruling is so narrow.
Reply to this commentLinkReport AbuseHeterosexual sex and homosexual sex are similar, but not identical. Therefore, treating them in a manner that is similar (i.e., recognizng civil unions), but not identical (marriage only for heterosexuals) would seem to be one of the possible reasonable and rational outcomes (there are other reasonable and rational outcomes). As a result, this compromise is a perfectly valid choice that should withstand judicial review under the equal protection clause.
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