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April 05, 2007


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Mr. BAC, you offer the state's interest in child-rearing as your case against gay marriage. Specifically, you want to insure that the father stays around. I agree, it is in the state's interest to insure that the father sticks around if there are children. And if there are no children, then the state has no interest. Your logic only works if marriage is restricted to couples who raise children -- regardless of their sexual orientation. Yet you're applying it to sexual orientation. That's not rational. To make matters worse, you overlook the possibility of gays adopting a child or lesbians becoming pregnant through a sperm donor. Has the state no interest in the well-being of such children? Again, your argument makes no sense. This irrationality is why I conclude that you are motivated by bigotry.

Mr. Hamilton, you have once again launched into a random collection of illogical arguments unworthy of response. I'll take the trouble to point out the most egregious error: you confuse my arguments about law with cultural preferences. There's a huge difference. Until you can offer me an argument with some logical meat on its bones, I shall ignore your verbal divagations.

Carl Dahlman

This is a sad discussion indeed. The tone is emotional, the charges personal, and no clarity has emerged at all. I wish you'd all calm down and discuss the real issue: is marriage a social or legal institution? If it were purely social, then you could plausibly argue that it is a political problem who should get married or not; if it is legal, you need to ensure that constitutional requirements are met.

And herein lies the problem. Marriage is both social and legal. But which method for arriving at collective consensus should take precedence here? The legal approach through courts, enforcing equal protection? Why? You all seem to agree that the political approach through partisan voting will trump the legal approach anyway. If that is so, why is this a legal issue at all? Let the voters decide the issue.

Two things about that. First, in the political sphere, we do not question the sources of people's values. We don't care what book, if any, you got your values from -- it could be the Bible, it could be Marx, it could be Camus, macht nichts, it's all the same. Only your vote counts. So, let's leave that aside completely and not cast aspersions on political beliefs. They are what they are, and that's the basis of our democratic system. No one suggests you should lose your vote just because you are homophobic or anti-Christian or both or neither. This is the true tolerance at the heart of our political order.

Second, the legal system looks at the written sources in the Constitution, statutes, and precedents, so it is concerned with the interpretation and definition of words and concepts. Thus, it would seem incumbent on this particular group to try to sort out whether the equal protection clause, or any other legal source, really can be interpreted to support homosexual marriage.

My problem with lawyers on this score (I'm an economist) is that you can't agree on whether the equal protection clause really applies. Well, if you don't agree, why should we then rely on your divided opinion to make policy? If you all agreed that this is indeed an equal protection issue, you would have my respect, and I'd say that the political issue never should arise. You've settled it for us. But the problem here is that a minority of lawyers may support one interpretation, and find the right court to accept that.

So, why don't you all settle into a serious professional, calm discussion of whether the equal protection clause really should settle the issue before us.

If you can't agree on that, perhaps you should then come to the conclusion that it is best to leave it as political issue, and let the voters decide, on whatever grounds they choose. You don't have any expertise in making claims about what constitutes a valid basis for a ballot vote for or against any issue -- that is not for lawyers to decide.

So, I'm calling on you all to discuss the boundary between the political and the legal, as it applies here. I'd be interested in a reasoned approach to that problem.



I appreciate and agree with your last post. But I regretably doubt that social norms and cultural standards can provide a basis for a gay marriage ban after Lawrence v. Kansas.

Justice Kennedy humbly took it upon himself to decide the boundries of our societal norms. On the bright side, Kennedy's naked hubris likely motivated the widespread marriage amendments to state constitutions in an effort to give our communities back to the people.


Mr. Lackawanna Blues, your comment reveals that you are approaching this issue from the point of view of your cultural prejudices rather than an objective assessment of social injury or benefit.

The cultural abhorrence to incest is well-founded in genetics. Indeed, experiments have demonstrated that we have a genetic inclination against sexual attraction towards siblings. However, we have now learned that the social injury done by incest is limited to the genetics of the children. An incestuous marriage would be socially injurious only if it produced children. If it did not produce children, no harm would ensue. That's an objectively provable fact. Yet you ignore the objective truth and maintain that your personal values override truth. You desire to impose your personal values on others without any concern for the benefit of any person. I object to that.



I give up. I guess I'm a bigot.


Mr. Dahlmann, I apologize for offending you with my testiness. I suggest that you look upstream and read some of Mr. Roach's inflammatory comments to see if I, as a civilized man, am justified in using the term 'bigot'.

But on to the substance of your comment. Your differentiation between the social and the legal has merit. Yes, IF we can establish that the equal protection clause doesn't apply to gay marriage, then we must treat this as a purely political matter and let the matter be decided at the ballot box. I would be happy to accept that conclusion IF we could eject the equal protection clause from our considerations. But I have come to the conclusion that the equal protection clause does indeed bear on this issue, and I conclude so for the following reason:

The equal protection clause may be breached only when legislators can show that some social benefit is obtained by discriminating in favor of or against some group. It's perfectly fine to restrict the freedoms of peach pickers if we can demonstrate that some social benefit is thereby derived. You can apply this reasoning to any group of people affected by a law. But you have to show some social benefit to the discrimination. And that's the test that the opponents of gay marriage fail. They can offer no rational case for a social benefit arising from a ban on gay marriage.

Also, you seem to believe that disagreement over the law renders it inapplicable. Yes, there's disagreement over the law. But that doesn't eliminate the applicability of the law. We take these disagreements to court and end up with a 5 to 4 decision in the Supreme Court, and we call that Absolute Truth. All of our rantings amount to nothing against that standard. Of course, today's 5 to 4 decision one way can end up being reversed later. Ah well...


Prejudice and values overlap. Law and social mores overlap. The problem with the left on this issue is that, knowing this, they want to use the laws to make society move in the ill defined direction of progress. That is they want the laws to change social norms. Conservatives, knowing this, do not want laws to transform long established social mores and thereby do violence to the social mores that preexist any particular legal arrangement.

As for harm, there is more than one kind of harm. There is the meta-harm of declining standards. There is the harm of something that I and most others disapprove of becoming socially sanctioned--no different than the harm I experience from knowing a kitty somewhere is being tortured or that children somewhere are learning creationism. There is psychological harm in certain kinds of sexual relationships, whether molesting, incestuous, or homosexual. (Indeed, until political activists pushed for it, it was a mental illness in the DSM.) So I think the idea that these are not real harms is just an assertion and has little bearing on other harms we prohibit, such as working below the minimum wage, prostitution, drug abuse, animal abuse, child labor, etc.

On contentious social issues like this, as BAC suggests above, the best way to deal with these things is to wait for majority approval to either ban something, socially sanction it, or otherwise have the law take a position on it. This is doubly so when the legal change will not reinforce an existing prejudice but instead try to create a new social norm, i.e., any form of social engineering.

One final thing, I've expressed my views strongly, but so have my opponents. This is not the end of the world, but there is no reason the burden of proof should be on me to defend the status quo. Nor should I adopt a detached tone when my opponents have not exactly set the example by describing Christianity as a backwards cult and, by implication, suggesting that most Americans and their values are the backwoods manifestations of a socially unimportant and irrelevant cult.

Laws everywhere effectuate the majority's values. It's unreasonable to think people like me will be cowed into silence b/c you label us bigots or unprogressive or irrational. I think your purposeless, hedonistic lifestyle is decidedly purpopseless and irrational and is one of the many reasons gays commit so much suicide. The lifestyle, like other pathological behaviors, leads to deep unhappiness and depression. And this penchant for suicide is only one of many health factors that come from this degraded and immoral lifestyle that, until 1986, was illegal in many places. See generally "Gay Bowel Syndrome."



What case are you citing for your "social benefit" interpretation of the equal protection clause?



it ain't so easy. The same issues applied in the early to mid 20th century with repect to racial segregation. Was that a political issue or a Constitutional one? The federalist bigots said it was poltical, a matter of states rights. If Mississippi wanted to make black people drink out of different water fountains, so long as everyone had a fountain there was no problem, right?

So what you ask for is very difficult to provide, especially when there is so much fear and ignorance about the matter.

But the simple truth is there are thousands and thousands of gay couples who live functioanlly married lives, even raise kids, and they are not protected equally by marriage laws. If you are going to allow homosexuality at all in the first place, if you are going to allow gays to cohabitate, if you are going to allow gay couples to adopt chidren, you MUST extend them equal protection of the law according to the plain language of the constitution. The case law is severely incomplete and inadequate in this area but that is no excuse. We had to update equal protection jurisprudence to include women and corporations too.

Frederick, I suppose you are right, many states after the DOMA defined marriage. But that simply begs the constitutional questions and the ethical ones. I fully admit that the politics are on your side, just as it was for segregationists. That doesn't mean the status quo is right or even constitutional.


what do you care if some weirdo wants to bang his sister and she him? What right do you have to tell someone else whom they can sleep with or love or live with? Do you understand the live and let live ethos of our country, the notion of personal freedom? Isn't that what we are fighting for in Iraq? Freedom? As long as there are no externalities involved you have no right to tell others how to live their lives or deny them equal treatment under the law, and the fact is any attempt by the bigots to point to externalities fail.


marriage quite clearly isn't just about children and procreation. It is about succession and property rights too. If it was otherwise, marrigae wouldn't include childless couples.

Frederick Hamilton

Geez I haven't seen "Gay Bowel Syndrome" in a long time. It reminds me of the comment of William F. Buckley, Jr. when discussing homonsexuals and the propensity for aids in that population: "what good can come from the decision to use the lower end of your digestive tract as a sexual organ?"

BAC, you are not a bigot. I am not a bigot. Some of my "best friends" are gay. 75% of America is not bigoted. When the left can't win an argument for change it is because of bigoted or racist opposition. The tired epithets of shallow thinking.

No, the American people will have the last say on same sex marriage. Not the federal courts or the Supremes. Should the Supremes invalidate DOMA and strike down the 26 states with constitutional prohibition on same sex marriage a donny brook will result and don't be suprised to find a new amendment to the U.S. Constitution. We the people. The judges and representatives and executive administrators in the end do answer to the people. Of the people, by the people and for the people. Thats grinds the arse of lawyers, but isn't it grand the people rule and not the other way around.

Frederick Hamilton

Quick point. What group of Americans dislike the concept of same sex marriage the most? Black America. It is apples and oranges to compare segregation to same sex marriages. Indeed, those wanting to maintain segregation were in the main racist. Those against same sex marriage in the main are not bigots. A big difference.


Mr. BAC inquires as to the case law regarding the social benefit test of the equal protection clause. I apologize for my sloppy terminology; the proper term here is "rational basis test". The government has to show that there is a rational basis for its interest in the matter it proposes to regulate. I'm sure you're familiar with this topic.


Clearly we need to ban heterosexual sex too because of "hetero yeast syndrome," where semen helps cause yeast infections in female's vaginas. Unreal.


Very sloppy Eras.

Proving a "social benefit" is quite different from provign a "rational basis."

If the state wants to encourage fathers to stick with their babies' mamas, then there is certainly a rational basis for limiting marriage benefits to couples that run the risk of unwanted or unexpected pregnancies. I concede the limitation is slightly overbroad, because not all hetero couples can or will reproduce, but such marginal overbreadth certainly does not make the limitation irrational.

Frederick Hamilton

Yeast is bad. Thank God and the Jews for unlevened bread. The U of C Law School and Medical School should talk more:

"A majority of American doctors believe God or another supernatural being intervenes in patients' health, a study has found.

And nearly two in five doctors believe religion and spirituality can help prevent bad outcomes such as heart attacks, infections and even death, according to the University of Chicago nationwide survey of 2,000 physicians.

"Most physicians apply medical science while maintaining a belief that God intervenes in patients' health," Dr. Farr Curlin and colleagues wrote in the Archives of Internal Medicine.

Take that you scurilous non-believers. God if you let him will give you good health. If you cross him, yeast infections and aids. :-)



how does marriage make men want to stick around? Methinks it has the opposite effect - they probably head for the hills more knowing marriage is expected of them.

But more importantly how would limiting marriage to heteros make any particular hetero father stick around more than he would if homos could marry too? And if you are willing to allow no child bearing heteros marriage, why not homos if your rational basis is making fathers stick around?

I think you need to think a little better about this purported rational justification for limiting marriage to heteros. If you are going to expand it to non child rearing heteros, there is no possible justification, based on your rational basis, not to do the same for homos.

But let'sanswer the first question. How is it a "rational basis" for limiting marriage to heteros to appeal to fathers sticking around. You seem to suggest that fewer hetero fathers would stick around if gays were allowed to marry. What is your basis for this bizarre conclusion? Hetero dads would stick around more but for the fact that gays can marry? The two seem completely unreleated, don't they? Yea. they do.



Let's take your dumb questions one at a time:

1. "How does marriage make men want to stick around?" -- Simple economics here, LAK, by providing a benefit to married men over unmarried men, we encourage people to get married. If you think there is no benefit, what are gays clamoring to get?

2. "How would limiting marriage to heteros make any particular hetero father stick around more than he would if homos could marry too?" -- Wrong question. The state does not have to extend marriage benefits to anyone -- there is no right to marriage. It chooses to extend benefits to heteros to encourage two-parent child rearing. The state can rationally conserve resources by not extending this benefit to gays because unwanted or unexpected pregnancies are not a problem in those relationships.

3. "If you are willing to allow no child bearing heteros marriage, why not homos if your rational basis is making fathers stick around?" -- This repeats question 2, so no need to repeat my answer.

4. "How is it a "rational basis" for limiting marriage to heteros to appeal to fathers sticking around?" -- Again, unwanted or unexpected pregnancies are a problem with heterosexual couples, not homosexual couples. A marriage benefit provides additional incentives for a man to marry the mother of his children. Without a marriage benefit, there would be more illegitimate, single-parent, or abandoned children.

5. "Hetero dads would stick around more but for the fact that gays can marry?" -- This is your stawman argument, and I responded to it in question 2 above.


My questions are hardly dumb.

1. Economics huh? What benefits are you speaking of to that individual man? The benefit is predicated on wanting to be in the relationship in the first place and primarily benefits the non-bread winner in the relationship, like guranteeing an intestate portion of an estate, alimony and child support, as well as guranteeing power of attorney for a spouce in the case of incapacity. I have no idea what these things have to do with a guy wanting to stick around to raise a child or not. No man other than Mr. Mom is benefitted by marriage. Your answer is dumb. If anything it repels accounatblity by making the entry and exit cost artifically high.

2. This is exactly the right question. Sure if homos actually challnged marriage laws on an equal protection ground, the state's going to have to come up with a rational basis for denying them equal protection. Your answer was that by limiting marriage to heteros, that will somehow make hetero men stick around with their wives.

BAC, you have failed here. Limiting marriage to heteros has no affect whatsoever one way or another on making hetero men stick around more when they impregnate their girlfriend. Assuming arguendo that the interest the state has in marriage is to make hetero men stick around when they knock up their girlfriends, you are claiming the reason that marriage should be limited is that a hetero guy is not going to stick around as much if gays can marry.

You must answer this question. You logic is terrible and flawed and you know it. Talking about a cowardly repsonse BAC. Maybe because you realize how ridiculous this claim is.

"Sarah, I'd marry you and raise our baby other execpt for the fact that gays can marry now, so I'm out of here."

It is clearly not me who is asking the wrong question, it is you propsoing the wrong rational basis for a state wanting to limit marriage to heteros. You might have a stronger argument if marriage was limited pregnant couples, but as you know that is not the case.

So please answer the questions:

What is the "economic benefit" that is confered on a man by getting married? (the benefit goes to the couple as a whole and isn't necessarily economicaly advantageus for either spuce- there is no benefit if someone doesn't actually want to share their wealth or raise their partners kids or take care of their partner)

And how does limiting marriage to heteros help promote a hetero father sticking around.

You are truly a disingenuous intellectual if you refuse to answer these simple questions. They are not red herrings. Your reasoning is piss poor and full of holes and you know it buddy.


gays are clamoring to get public recognition first and foremeost. It is what bothers people like you and roach the most, and it is what clouds the legal issue that is important to me.

But in wanting marriage, no individual homo wants marriage for the economic benefit, they want it for the legal benefit. Of having custody of the kids they raise, of being able to make end of life decisions for their loved one. I guess wanting to share in retirement and health benefits is a big one, and is economic, but it ain't the man who generally is benefitted by this, it is the non-breadwinner, which in heteros is 90% women.


Mr. BAC chides me for sloppiness in using "social benefit" instead of "rational basis":

"Proving a "social benefit" is quite different from provign a "rational basis.""

And how might they be different? I challenge you to provide me with a rational basis for opposition to gay marriage that does not include a social benefit.

Next, Mr. BAC argues against gay marriage on the ground that denying marriage to gays saves money. This is true -- but then, if saving money is the goal, then why have ANY marriage benefits? Ah, to encourage child-rearing, you say. Very well, then why not tie the fiscal benefits to the children rather than the marriage? That would save money, too.

Hence, you have not yet offered a rational basis (or social benefit, for that matter) for excluding gays from marriage.


Lak, thanks for responding to my question about the capitalism/gay thing.

I'm not sure the connection is anything more than a verbal one ("heterosexual marketplace"), though. And anyway, I can't go along with your your omnisexual premise. There are still some open questions, but science is closing in on the biology of sexuality. We already know gayness correlates with certain differences in brain structures (something to do with a gland... I forget). So the fact that we do not marry houseplants is not the almost-happened historical contingency you're making it out to be.

As for all you anti-gay marriage people, maybe it will help if I let you in on why I'm so sanguine about radical changes in one of the oldest institutions of western blah blah blah.

'Cause it really doesn't matter. Nope, it doesn't. Things change. Remember when we lived in caves and things were fine? Remember when everyone was polygamous and it was fine? All those cultural studies of weird sex practices in Polynesia or whatever: they're doin' fine too.

I guess if you guys are Christian, then I understand. Then you have all those metaphysical hangups that the rest of us don't. Why not be be more explicit so the rest of us will know how seriously to take you: "God said marriage is such-and-such. So let's keep it that way."


Lee writes . . .

"Remember when we lived in caves and things were fine? Remember when everyone was polygamous and it was fine? All those cultural studies of weird sex practices in Polynesia or whatever: they're doin' fine too."

I, um, don't really remember the first two, and have no idea what cultural studies you are talking about.

More on point, are you really indifferent between living in the current day Chicago, the stoneage, Colorado City, and a Maori village?

Frederick Hamilton

As Daniel Patrick Moynihan said, "culture is more important than politics". Indeed. And cultural changes have more intensity involved in them than politics. That is why save for the Massachusetts Supreme Court, no other state court is willing to overturn the cultural norm of marriage. Both New York and California Supreme Court upheld their states laws on marriage (not two states known for their conservative ways).

Same sex marriage is not a legal issue. It is not a political issue. It is a huge cultural issue. If Moynihan is correct, it will be hard to change.

There is no equal protection argument that will win the day legally. There is no legislative body that will grant same sex marriage, ergo until the people demand a change in culture same sex marriage won't happen.

Civil unions and domestic partnerships are as good as it will get. Lawyers should understand that civil unions can be arraanged to offer all the benefits of marriage except the word marriage. Except of course for DOMA and federal benefits, which no Congress will pass in the foreseeable future. No federal courts to the rescue. No Supreme Court to the rescue. A states rights issue to be sure. Every state controls their own marriage laws.



I'm not sure that being able to identify biological factors that contribute to homosexuality is mutually exclusive from the claim that capitalist socialization contributes to the pervasiveness of it. Indeed socialization influences biology and biological signals all the time. Look at obesity. And if you'll note, part of the theory is how certain bilogical factors you are born with fit in to the rigid gender construct you are subjected to as a child in our culture.

That anyone can sexualize a prepubescent child should tell you how variable sexual desire is.

And I will also note whom you are sexually attracted to is only one factor in who you end up marrying / cohabitating with. Sexual desire is only one part of a relationship. Intellectual and emotional intimacy and comfort with others, independent of sexual desire, is a huge factor with respect to whom one is physically intimate with and whom ones decides to spend their life.

And if a man or a woman grows up feeling completely valueless in that "heterosexual marketplace" if they grow up feeling an isolated and percieveing themselves unwanted by the other sex, it is only natural that they will seek intimacy and all those things a realtionship provides outside of sex from members of their own sex, often with similar experiences.

And if you are unfamiliar with Marxist humanist theory, of his theory of alienation and how the marketplace pervades all aspects of our lives, I suggest you should read Marx's 1844 manuscripts, or perhaps some Herbert Marcuse.


You may be right, however, as I've always tried to do here, if you limit the inquiry to the law, there is most certainly a equal protection argument. It couldn't be more plain. Sure the existing EP jurisprudence is limited and not there yet. Sexual preference is not yet a protected class. Either were women at one point. And yes, this high court especially would never expand heightened scruity or strict scrutiny to incude homosexuals as a protected class, but that certianly doesn't mean they are not wrong and that they should not.

When you actually live around same sex couples, and you actually realize how small a set of legal rights and privileges civil marriage entails, it makes no sense that gay couples living together with children do not get treated the same way as hetero couples and families when someone dies or they divorce or someone loses capacity.

Marriage law is not that complex and relates to the relationship between the people have with each other. The fact is gay people have that relationship, whether yo like it or not, are allowed to cohabitate, fornicate, leave each other their estates, raise kids together. And they do, right now here in our country in fairly large numbers.

And for this simple fact, it is an equal protection violation not to extend to them the same rights as hetero couples have in the exact same situation.

If you want to call gay marriage something else, I could care less. I'm not in this fight for the cuture war or the politics. I'm in it for the justice.

And it is unjust when we allow a gay couple to adopt but give custoy to only one of the parents who on divorce who can cut out their spouce from seeing the children they raised.

Not only is that wrong, it causes our court system to incur increasing costs. Will battles are another area that are costing our courts time and money,

That you of all people can't see this is ridiculous. No one is asking you to be gay. No one is asking you to support homosexuality. But insofar as homsexuals exist, commit themselevs to each other for life, live together and raise kids together, justcie demands equal protection of the law, plain and simple.

The rest of it is just bigotry and the ugly culture war caused by the steady erosion of that 2000 year old cult. It produced major anxiety in those who clung to it.

Have you seen the creatinsim museum in Kentucky? It has a cave man riding a dinosauer in a saddle.

Frederick Hamilton

I agree with you that those homosexuals wishing to have a marriage equal to heterosexual couples are not able to attain that. Is that arbitrary? Of course. Is it capricious? No. Is it a violation of equal protection? No.

17 year olds can't vote. Against the law? Of course not. Arbitrary? Of course. 17 year olds can't drink. Adolescents convicted of murder or a crime are treated different than adults. Arbitrary? Yes. Illegal? No.

There are many arbitrary bariers to marriage. Close relative. More than one spouse. Age. Sex of the marriage applicants (man and a woman). Are these arbitrary? Of course. Illegal or violating equal protection? No.

These are the laws of the land. The Supreme Court will not strike them down. Won't happen. For starters it isn't a violation of equal protection. Secondly, the Supremes aren't stupid. They don't want to be dealing with another Roe v Wade for the next 40 years and all the public acrimony and hate that engenders. Thirdly it is a states rights issue, not a federal issue. Unless the Supremes make it a federal issue by taking it on. (doubtful, stupid, acrimonious and just won't happen)

Does the fact the country isn't willing to embrace homosexual marriage because of hate and bigotry? No. As noted above, the Pew poll shows 54% of Americans in favor of civil unions for homosexuals as an alternative to marriage. That shows tolerance, not hate or bigotry. The reasons the public feels the way it does is multi-factoral. Religous. Cultural. Traditional. Woody Allen's latent fear of really being homosexual (just kidding).

Homosexuals can have equal protection under law you wish them to have in any state with civil union laws. All the issues of children, custody, revocation of the civil union (kinda a divorce), etc would apply to them.

I for one would be willing to have the feds modify DOMA to allow for tax benefits and Social Security, Medicare and Medicaid benefit reforms with civil unions.

LAK you should go easier on that 2000 year old cult. Most of America considers themselves a member of that cult. No person could get elected to any office (including dog catcher) or get appointed to any state or federal bench if they espoused your views on that 2000 year old cult. Likewise, no person of effective persuasion would try to tar Christians with hate and bigotry over same sex marriage.

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