« Debate: Stone vs. Posner | Main | Stop the Presses: FCC Unbundling Rules Upheld! »

June 15, 2006


Feed You can follow this conversation by subscribing to the comment feed for this post.

Frederick Hamilton

The base of the conflict (regarding gay marriage) is a belief system (some of which is religous), a gut feel for the normal or natural, longstanding traditional concepts over centuries and many cultures regarding marriage. I think that sums up the "base" of this conflict.

It is that base that will have to be overcome before gay marriage gets elevated to a "right". I suspect that will take a very long time, if ever. That is as it should be. It also is what makes the issue of gay marriage a 10th amendment states rights issue and not a federal issue. Unless the Supremes elevate it to a federal issue by declaring the Defense of Marrriage Act (DOMA) unconstitutional. Then the "conflict" will get more heated and political. Political in the sense that it may come down to the will of the people. But isn't eventually the will of the people what are form of governemnt is all about?

In reading the Constitution and its evolvement over the years, the collective will of the American people has been pretty good and very fair. One could argue the prohibition amendment since rescinded, but other than that experience the Constitution has stood the test of time and amendment pretty well.

Frederick Hamilton

Sorry, didn't proof read. our not are

The Law Fairy

"Unless the Supremes elevate it to a federal issue by declaring the Defense of Marrriage Act (DOMA) unconstitutional."

Wouldn't it be Congress who elevated it to the federal level by enacting the law in the first place?

As to a "gut feeling," on what do you suppose that is based? Lots of people have "gut feelings" that black people are inherently more dangerous. Don't we as a society have an interest in shifting those "gut feelings"? A "gut feeling" that homosexuality is wrong (by the way, every single person on here has focused on sodomy but there's virtually no mention made of female/female sex *without* a dildo) is sexism, pure and simple. There's zero value in enforcing the validity of that kind of "gut feeling."


I think we're just going to have to agree to disagree Bob, although I see where you're coming from. We're just approaching it from different viewpoints.

I think it's pretty clear that I neither find homosexuality reprehensible nor do I particularly care about the nature of the acts involved.

As for the question of whether or not any other mammals or primates engage in homosexual behavior? I have no real clue. I did a quick search on goole and found this:


I can't, and won't, vouch for the info presented, but it is somewhat informative. I'm sure there's a whole boat-load of information out there somewhere, I just don't have to time to vet each one and then point you in the right direction right now.

Frederick Hamilton

The Law Fairy,

Sure, in a technical sense yes. It was Congress that passed DOMA, signed into law by President Clinton, and the "federal law" gave the states the power to accept or not accept another states marriage as I understand it thereby negating any implication of the "full faith and credit" clause. In fact Article IV Section 1 reads exactly "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State; And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."

My reading of that makes it quite clear that DOMA is constitutional as Congress clearly can through general laws determine the "effect thereof" of the marriage laws on the other states. i.e. Congress can determine the effect of the various state laws regarding marriage as it relates to other states.

So really, DOMA tried to toss it to the individual states (i.e no federal issue).

Another way to make a "federal case" of marriage is for a federal judge to rule the Nebraska constitutional amendment approved by a vote of over 70% of the people of Nebraska defining marriage as a union of one man and one woman to be unconstitutional. A federal appeals court or the Supremes would then have to reverse that federal judges ruling or voila, into the federal domain comes marriage.

By "gut feeling" I was simply trying to describe what makes up the "base" of resistance to same sex marriage. Obviously "gut feeling" is a little cavalier, but whether the gut, or heart or head, whatever the citizenry use to ascertain their opinion of same sex marriage. Along with religious beliefs, traditions, cultural paramaters, et al. A multitude of factors that make up the "base" of those opposed to same sex marriage was what I was trying to get at. Most Americans are probably not arriving at their position on gay marriage based on the law or constitution (civil rights, heightened review, equal protection, et al).

There is more than "zero value" in enforcing that kind of gut feeling, as I suspect most elections are decided more on "gut feeling" than a reasoned review of a candidate or a ballot proposition (just my gut feeling, don't have any exit polling data on that).

As to sodomy versus female/female sex without a dildo, that kind of hair splitting regarding sexual proclivities is not of great concern to me and I have tried to avoid going down to that specific a detail of sexuality. Not sure it really matters.

My hope is that federal judges have the sense of leaving alone the open spaces (as Judge Posner speaks) of the Constitution and let the states and the people (10th Amendment) work out the details of marriage. We'll see. Time will tell.

Kimball Corson

I thought I mentioned “same sex sex” and in using the word homosexual I meant to include lesbians as well. But moving on, it is the “gut feelings” we have that we need to better articulate, address and understand without escaping into ethereal constructs as rationalizations. So far we have “not normal,” “gross” and “unnatural.” What is “not normal” to only some heterosexuals, is however normal to some homosexuals and their absolute numbers are not small. Also, is cunnilingus or fellatio “not normal” or “unnatural” or “gross.” The minute we accept that sexual relations can be for pleasure and not only for procreation, than many doors are opened as to what some might find both “unnatural” and “gross.” Indeed, simple heterosexual intercourse can be viewed as so called “gross” in some regards because with strong orgasms, women can and sometimes do begin their periods during intercourse, loosing bladder or sphincter control and indeed there is the possibility of spontaneous or unplanned anal intercourse with a woman. Homosexual anal intercourse, with bowls purged before hand, could be much neater or much less “gross,” if you will than these “unplanned” heterosexual activities or consequences. If we recognize we are all composed of blood, bacteria, other fluids and feces, it then becomes harder to find many sexual acts and their consequences to be “gross” or “unnatural.” The analogy here is the ad showing a woman spraying Lysol everywhere to ‘kill germs’ or bacteria, when in truth bacteria live in equilibrium all over us and in us as well. We can not deny what we are composed of, but should face and accept it and therefore recognize much we wish to deny as “gross” or “unnatural” really is not; it is just us. By being more accepting about what we are, then much more about what we do can become acceptable or at least understood and allowed for others.

Louis Kessler

This discussion should proceed from the stipulation that gay people alreay live together as monogamous couples and already raise children together. This talk of natural and unnatural is neither here nor there. After recognizing that gay people alreay live as functionally married couples, the legal discussion should look to see if discriminating and prohibiting gay life-partners from gaining the rights of married people rationally advances a legitimate state interest.

Becasue some people, even a majority, think gay sex is gross or wrong is not a legitimate interest for constitutional purposes.

And yes, homosexual behavior is all over the animal kingdom, but especially amongst the higher primates and ocean mammals.

Kimball Corson

That approach, Louis, does not address what bothers so many about homosexuality. If we don't address their real concerns, they will find and promote a "legitimate" state interest. It is hard to win in the political arena on this kind of matter without a supra majority because of the organized moral majority and the cadre promoting family values.



Thanks again for making some thought-provoking points.

I agree with you that the opinion of the majority surely matters. I'm all for democracy! But I don't think our commitment to majoritarian standards should be absolute.

I know I've been making mostly legal arguments on this thread, but let me now turn to the purely normative...

Con law aside, I think racial segregation was wrong (my normative judgment) even though majorities in many states thought that segregation was natural and morally correct (the majoritarian normative judgment). As a purely normative matter, should we have respected states' rights out of deference to majority will? If not, what is the principle you use to decide when majority opinion should be discounted?

Note that, in my example, I am not drawing any comparisons between gays and blacks. Nor am I suggesting any similarity between desegregation and same-sex marriage. I'm only suggesting that both situations pit a majoritarian social standard against a minority social standard.

I think it's great that the last few administrations have (at least in rhetoric) supported "liberating" women abroad. Our rhetoric and our efforts often contradict the majoritarian social standards of those foreign communities. So, as a normative matter, do you think we should defer to those majoritarian standards?

I'm not ready to propose or endorse any grand philosophical principle on when we should and should not discount majority opinion (maybe I'll do that in a later post). However, at a minimum, I think your faith in majority rule seems a bit too absolutist. Can you offer some sort of limiting principle to your pro-democracy perspective?

Louis Kessler

Well, forcing people to justify their willingness to discriminate is a start right? Having them justify their desire to discriminate or admit that they are motivated by religious hostility and that they are attempting to establish religious morality as the law of the land is a good start.

The problem is, people's views often won't change until the law does, and for that we need a courageous High Court to stand up for minority rights when the majoity can't come up with a reason other than disgust and religious belief to justify their desire to discriminate. If they can't come up with a legit state interest for the discrimination, that should trigger a constitutional inquiry.


Who cares what the animals are doing?! "If animals have gay sex, then it's okay." "Animals don't have gay sex, so it can't be okay?" Since when do we use monkey society to determine right and wrong? Have we really reached the point that we say: "Well, I don't know what we should do, this is an emotionally charged, controversial issue. I know, let's check to see what Coco and the rest of the squirrel monkeys are doing."

Kimball Corson

Louis wrote in part, ". . . we need a courageous High Court to stand up for minority rights when the majoity can't come up with a reason other than disgust and religious belief to justify their desire to discriminate."

I respond that we should not hold our breath on that one, and, worse, things are moving in the wrong direction there. Coco and the rest of the squirrel monkeys would be a better bet. I kind of like Anon's suggestion. It holds more promise for a sensible result.

Frederick Hamilton


The only limiting principle regarding majority rule and a "pro-democracy perspective" is the Constitution. It pretty much says it all. It has the final say. Very few issues rise to Constitutional amendment import. I am not sure gay marriage will reach that level. If it does, I don't have any other good answer to you other than a super majority of states (read people, representatives, et al) will make the final call. Those are the rules we live by and I think they have stood the test of time.

Certainly racial segregation was wrong. Brown v. Board of Education was a Supreme Court reversal and a victory and vindication for desegregation. I don't think it true that a majority of states approved of segregation. Certainly there was no movement to amend the Constitution to make segregation the norm of the land. It wasn't a normative situation. Congress's passage of the voting rights act which only required federal review of changes to voting laws in a few states is another example of some states being told their "norm" is indeed not normative.

It is easy to come up with many reasons to discount majority opinion as binding. The enlightened few. Clearer thinking by a minority of us. Who knows. I simply don't think you will be able to come up with any legal reason to take away the ultimate authority of the people to control their representative, republican, federalist form of government if the people become upset enough to invoke a successful attempt at amending the Constitution which really means the people ultimately telling all judges, politicians, enlightened classes, clearer thinking folks, just what the laws of the land will be.

I still retain my faith in the collective judgment of the people. Faith in any other approach leads to anarchy and tyranny. As I mentioned above, it is the rare issue that requires the country to tell judges and politicians what the rules will be. Will gay marriage be one of those issues? It might. I kind of doubt it. I think the federal courts will back off and leave marriage to the states. If the federal courts do not, certainly there will be a more intense move to amend the Constitution than heretofore. Possibly from the states with a Constitutional Convention as opposed to coming from Congress. Will any of the Constitutional amendment activity regarding gay marriage succeed? Your guess is as good as mine. Time will tell.

Kimball Corson

A basic problem with democracy is the capacity of the majority to tyrannize the minority. 51% can be dictators to the other 49%. Under Kenneth Arrow’s Impossibility Theorem diverse wants can rarely be satisfied by the political process.



Thanks for your post, but I find your argument a big confusing. First, I think you are conflating your normative and legal arguments. Second, I think some of your points are circular.

First, to be clear, my question was purely philosophical. Based on my discussion above with Law Fairy, Grant Evans, and Louis Kessler, I am already persuaded that there is a strong constitutional case for same-sex marriage at the state level and an unclear constitutional case at the federal level. My question to you was purely philosophical: when should we discount majority opinion? I asked you this because I think your deference to majority opinion is too absolute.

On one hand, you concede that we should discount majority opinion when there is an "enlightened few" and "[c]learer thinking by a minority of us." On the other hand, you suggest that the there is almost no basis for ever discounting majority opinion because, according to you, the only mechanism for suppressing majority opinion is rightly the Constitution, but ultimately the (super)majority can amend the Constitution to make it look the way it wants anyway. (So, in a circular fashion, you're suggesting that the majority is ultimately always right.)

I think the most important part of your post was where you conceded that, at times, the minority may think more clearly than the majority. With that in mind, I endorse the philosophy that the majority should exercise restraint and not use the Constitution to impose its viewpoint on contentious social issues. After all, like you suggest, the minority might be correct.

Most of the Constitution's rights-related amendments protect the individual from the majoritarian government (e.g., the Bill of Rights' negative rights, the Reconstruction Amendments). Narrowly defining the right to marry through FMA would cut in the other direction. I believe prohibition was the only time the Constitution has been amended to reinforce the majority's power to regulate; the Prohibition Amendment was a disaster.

A new question: if you are serious about states' rights, shouldn't you be opposed to FMA? FMA takes rights away from those states that endorse, or at least are undecided on, same-sex marriage. If you were to be consistent, shouldn't you just promote some sort of amendment that simply asserts that marriage is defined by states? (I'm not suggesting that such an amendment is a good idea, I'm just suggesting that it would make your argumentation more consistent.)


If there was evidence establishing the (in)efficiency of same-sex marriage, would it ruin/help the constitutional case for same-sex marriage?

If it is shown that allowing homosexual couples to marry will increase adoption rates, improve incomes, reduce spread of STDs/health costs, reduce social security payments, etc.. more than administrative costs and lower child outcomes (which is NOT evidenced, but for the sake of argument)...if this efficiency of same-sex marriage is established I have a hard time believing it is enough to make the case.

And if proving efficiency doesn't work, then one has to ask why the government is reducing social welfare, when the constitution calls for its promotion?

Frederick Hamilton


I looked at your question and agreed that as a philosophical argument there is a pernicious aspect to majority opinion. The tyranny of the majority is a real fear. There are enlightened minorities that I believe have a more rational view of situations than the majority. I simply raced to the end point of the argument and acknowledged that the ultimate arbiter of decision making indeed would be the "majority". I tried to make clear but really didn't say it well, that the beauty of our Constitution is that it is very difficult to amend the constitution. This super majority needed for the people to express the view of the law is hard to put together and even harder to sustain to the successful amendment conclusion. The majority does exercise restraint. Restraint is built into the process at every turn.

I do believe in states rights. I am opposed to an FMA unless.... Unless the federal government exerts its power over the states in an arbitrary and capricious way. But wait you will say, defining marriage by federal courts and judges is not arbitrary and capricious it is interpreting civil rights and equal protection, et al. In virtually all cases that is true. In the rare case, there may be enough push back by the public that the collective will of the people says, no. Gay marriage might be one of those cases for a myriad of reasons. Natural v unnatural. Norm v. non-normative. Culture v major cultural change. Religious v agnostic/atheist. True constitutional issues v non-constitutional issues. Federal power v states rights.

Re-defining marriage to include same sex marriage is a big big deal. Obviously to the homosexual community it is not. To them it is a natural progression of their relationship. That's fine. One would not expect anything different from the homosexual community. The remainder of America may not agree. If the remainder disagree strongly they certainly are free to oppose the re-definition. As I mentioned before, I think 34 states have either laws or state constitutional amendments that define marriage as between one man and one woman. That is a big majority of states. In some states that opinion is probably close to 50/50. In most, at least all of those voting in the past four years it is closer to 70% opposed to gay marriage.

There is a "sort of" amendment (a law really) that does assert the issue of marriage definition is left to the states. It is DOMA. It already exists. The only need for an amendment of any kind defining marriage would be if federal courts and judges decide that DOMA is not a state issue and that Nebraska (to take an example) cannot define marriage as between one man and one woman or that Utah must accept a gay marriage from Massachusetts.

I agree with many a constitutional scholar that Roe v Wade was a bad decision. Good, non-bigoted, well meaning legal scholars on the right and left think the decision was wrong. Time has proven them right from a cultural perspective. One cannot get on the Supreme Court without hinting one way or another how they feel about Roe v Wade. Democrat or Republican. Were the Supremes correct in telling society and our country as a whole what to think and believe about abortion? No. They inadvertently have kept abortion a hot button divisive issue until Roe v Wade is possibly overturned and returned to a states rights issue. Abortion and gay marriage may such moral issues that they deserve the public’s determination, not the courts. There simply are such issues. Gay marriage if ensconced into public law by judicial decree and not the consent of the governed will sit right there with Roe v Wade and be a festering sore in the American body politic. Do we want that? I don't think so.

If Massachusetts, New York, California and any other host of states want gay marriage, go for it. Just don't expect the remainder of America to go along. That is an issue that I believe will be more detested if forced on America by the federal judiciary than Roe v Wade. I could be wrong. I am not that enlightened.

Decisions such as gay marriage are not decided by economic efficiencies. The issue may not even be decided by civil rights and equal protection arguments.

I don't have my copy of the Constitution with me but off the top of my head, changing adult status from 21 to 18 comes to mind. The age of voting was changed from 21 to 18. Women as a class were given the right to vote. Citizens as a class could not be denied the right to vote based on their color or race or previous servitude. The condition of slavery and servitude were abolished. So I don't think a constitutional rights related amendment applying to such a broad issue as marriage would be beyond the pale of constitutional amendment status. And all of those broad based rights issues were passed by the super-majority clauses of the constitution. So, again, I stand by my view that the collective will of the people as codified in what it takes to amend the constitution speaks well of the collective will of the people and of the framers of the constitution.

Kimball Corson

The incoherence, confusion, miscommunication and logical problems running through this thread are spectacular, given the putative educational levels of its participants. I doubt that anyone’s thinking was significantly altered here. I suggest, as I have said, that until we come to grips with the core issues and drop all the constructive rationalizations we engage in, there will not be any useful progress on this topic. We just don’t seem to be able to accept what and who we are. Our denial creates, in substantial measure, the constructive rationalizations I mention, but they do not really change our thinking or views, for these reasons. Subconsciously we know they are just constructs and that they miss the points we cannot face.

Frederick Hamilton


Your post could just as easily be talking about Roe v Wade/abortion as it is gay marriage. Of course the debate is full of incoherence, confusion, miscommunication and logical problems. We are discussing a radical departure from the "norm" on a very big issue: marriage.

As I noted above, it is an issue that does not lend itself to a solution based on "the law". It is a societal issue of immense proportions.

Those that try to win the argument based on equal protection are frustrated. Those trying to win the argument on civil rights are frustrated. Those that try to win the argument on economic efficencies of marriage are frustrated.

The overarching issue to be determined is does society want to re-define marriage? Pretty tough to win that one based on the law, reason and logic. My prediction is that the inferior federal jurisdictions will create a stir by either outlawing states amendments that bar same sex marriage or will strike down DOMA. Once at the level of the Supremes. The SCOTUS will actually validate the states amendments and DOMA. The new Bush nominees will be pivotal. So once again, as much as we all might hate it, some issues really are political and not judicial.

Kimball Corson

I don't disagree, Frederick, except that why must society care about what a minority wants if it no skin off society's nose? However, we are still dealing with everything except what really bothers us about what that minority wants. I think if we understood more and better, we would be more accomodating. What is at best strange to you and I obviously isn't to a large number of others. Why?



I respect your personal opinions, but I want to re-emphasize two problems that I have with your arguments.

- I stand by my position that, if you are for states' rights, you should be against FMA. If DOMA were found to be unconstitutional, why would you jump to define marriage at a federal level through FMA? If you were genuinely supportive of states' rights, wouldn't you simply endorse an amendment that would make DOMA (statutory law) into an amendment (constitutional law)? I am not suggesting that such an amendment is a good idea, but such an amendment would at least make your argumentation consistent. Right now, I find your logic a bit frustrating. One who is for states' rights should not be for FMA. In fact, conservatives who oppose FMA often do so based on states' rights arguments (e.g., Dick Cheney, Bob Barr, James Wilson, Bruce Fein, Chris Cox). Although I disagree with those conservatives on many issues, I at least respect their consistency.

- I stand by my argument that FMA would be historically unique (save for similarities with the Prohibition Amendment). All the amendments that you raised BROADENED the scope of individual rights. Increasing suffrage rights and abolishment of slavery both increased people's ability to participate in, and thereby challenge, the government. Much to the contrary, FMA would NARROW the scope of individual rights. The amendments that you cited increased the power of historically disadvantaged sectors of the population. To the contrary, FMA would simply reinforce the power of an existing majority.

Finally, I think debating the merits of FMA is interesting, but really unnecessary. You predicate your strong push for FMA on the potential unconstitutionality of DOMA. For better or for worse, I don't think DOMA is going to be held unconstitutional (not anytime soon at least). At the moment, no major gay rights organizations is challenging the federal DOMA through litigation. FMA is a solution searching for a problem.

Frederick Hamilton


I am for DOMA. I am for states rights. I said I only favor a FMA if the federal judiciary guts states rights and invalidates the wishes of the states vis a vis the definition of marriage. Ergo, the two positions are consistent. FMA only needed if federal courts including the SCOTUS force the issue by legalizing gay marriage across the nation. As they did with Roe v Wade relative to abortion.

Would FMA narrow rights. I suppose you could view it that way. It would definitely define the right of marriage. I am just arguing that a few issues are best left to the legislature (read people). I think you and I are in agreement actually. Let the states decide. I agree that a FMA will not prove necessary as I believe the SCOTUS as presently constructed is sensitive to the divisiveness of the marriage issue and wouldn't repeat the mistake of a Roe v Wade.

Kimball, an issue like gay marriage is as I have said before a big deal to many in the nation. Why is it any skin off a heterosexuals nose to let homosexuals marry? I think because it would be analagous to every state being forced to execute those convicted of first degree murder. What is the skin off my nose? I don't kill people, it won't apply to me. I guess because it violates peoples moral principles. I am opposed to the death penalty so I like it that some states value life enough not to have the death penalty. But I guess I better watch it because now I am wandering into morality and religion.

As I said before, the issue of gay marriage is not purely a legal one, a skin of one's nose one. It is a significant departure from the laws and norms of many states and the people thereof. Simple and as difficult as that.



DOMA and the proposed FMA are worded very differently! DOMA's language allows states to define marriage as they see fit. Under DOMA, states can legalize same-sex marriage if they so please; they can also choose not to recognize same-sex marriages. The proposed FMA is very different! Under the proposed FMA, states would lose their right to choose because FMA would mandate that ALL states must not recognize same-sex marriage.

If you sincerely support states' rights, you should support DOMA but oppose FMA. The two cut in opposite directions, as far as federalism goes. Do you see that? That's why I think Bob Barr is consistent when he opposes FMA, even though he authored DOMA.

Even if federal courts "force the issue" as you put it, and you want to support states' rights through a constitutional amendment, FMA is not the way to go.

Note that federal courts are not facing the issue of same-sex marriage. All pending litigation is at the state level.



p.s. FMA would definitely take away rights. The same-sex couples who are already married in Massachusetts would have all their marriage rights stripped away from them by FMA.

Frederick Hamilton


OK. Agreed. If federal courts/judges force the issue, then I certainly could support a constitutional amendment that gave states the right to define marriage as they saw fit. Fair enough.

I think you are wrong about all litigation being at the state level. I believe a "federal" judge struck down a Nebraska consitutional amendment regarding marriage. Also, I think there is activity taking place in other federal courts/judges.

The comments to this entry are closed.