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June 15, 2006


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louis kessler

Oh and Bob,

Even Einstein believed in God. Maybe not one that meddles in human affairs, but as a physicist, no one knows how to account for the energy/mass in the big bang. So I know exactly what I believe. I simply understand the limits of reason and scientific inquiry and where it fails and is inadequate and that there is a whole lot out there science cannot, and will never be able to explain.

Does that mean that it is rational to believe in the infallability of scripture? Does that make me confused? Certainly not.

The Law Fairy

Bob, you confuse me. In response to hinla you say "the primary purpose of marraige is to raise children, to give them a stable home. It is a contract between two people for the purpose of providing for offspring. This contract binds both parties until the children are of age; that is what child support is all about. If children were not the issue, then people wouldn't need to get married, just live together." In response to me, you say "Civil marriage is merely a contract between two people." I agree with your latter view and, frankly, I'd like to see us get rid of our system's current discrimination against singles. Get rid of that, and most of the same sex marriage issue will disintegrate. But I suppose that's neither here nor there.

You talk about "nature" but you haven't really defined it. What's natural? Putting a hard object into a hole? You seem to imply this might be the case with your flippant comment about dildos (since, clearly, that's the only thing that could possibly please a woman sexually). Yet clearly you do not think it the case given your classification of sodomy as "unnatural" (where does oral sex line up on your spectrum, I'm curious?).

So perhaps you think it is natural to stick a penis in a vagina. Why? Most women start off life with a flap of skin clearly meant to PREVENT vaginal intercourse from occurring with much ease -- so it seems to me that vaginal sex is actually pretty UN-natural. You may say, "it's about procreation." Why is procreation such a "natural" (hence good? Or hence... not unnatural?? Begging the question, so what) thing? Procreation is generally detrimental to women's health and inflicts more hungry mouths on a world already facing scarce resources. It's such a problem that in China it's practically outlawed.

I don't understand this obsession with "natural." Why is natural good, and how do we define natural? I haven't been able to gather a cohesive answer to this from your posts.

As to shoving lifestyles into people's faces, I think you miss my point. If a gay person could have a picture of his or her significant other and children out on the table at the office and not have to worry about repercussions, I would agree with you that it is much ado about nothing. But obviously you can't make that argument, because it would be ridiculous to try to do so. It all goes back to your bald assertion that heterosexuality is the "norm" -- why is it the norm, Bob? Says who? I'd refer you to some excellent work about Aristotle's classification of people into categories (essentially, same or normal and "other") done by Catharine MacKinnon... but something tells me you might not be a fan of her work. Feel free to prove me wrong, however.

And please don't call me silly. It's irrelevant and disrespectful.

Louis Kessler

"majority rules, right or wrong, get it?"

OK, I'll bet good money our friend Bob is not a graduate of the U of C or any law school. Bob has some problems understanding how the Constitution works, and he seems awfully confused, especially when talking about consent of sheep and children:

" Then you say: "In additon to that, when that sort of sexual activity is nothing more than the extension of a loving relationship between two people, I can't imagine what you would see wrong with it... but then I'm not you."

True, you are not me. I also find bestiality, sex with minors and a few other acts to be disorders, regardless of how consentual and loving. You probably don't, seeing as you are the open-minded one in our conversation."

After this comment, does anyone wonder why I doubt those seeking to prohibit gay marriage are motivated by anything but fear and hatred of gay people?

Ok, enough of this blog. It is too depressing and I have documents to review.

Are you ready for the country? Becasue its time to go.

Kimball Corson

The logic of this discussion is if behavior is natural, it is alright; if it is unnatural, it is not. The considerable crossfire has centered on this nonsensical distinction. Natural = good; unnatural = bad. I can suggest another: unnatural = interesting and creative; natural = boring, whatever those words mean. Come on people, really! Is not this natural vs unnatural discussion just an obvious and flimsy pretext for group A to mind group B’s business? Law Fairy is the only one to really focus on the collateral and practical social issues, which is certainly a more credible approach – if an approach is deemed needed – than natural = good; unnatural = bad. Why don’t we each just mind our own business? Is that so hard? But for sentiment contrary to this suggestion, homosexual practice should not even be a legal issue. But it is and that is the launch pad for taking positions on the rights and privileges that should or should not be allowed to same sex couples. Where is the sense or necessary logical connection in that? Excuse me, but the logical lapses are just too great here.


The issue should not be a legal one, but the law is actually intefering at the moment when parents teach their child to be a responsible, loving adult & when the child grows up to be in a homosexual relationship, he/she cannot marry his/her partner. Now, I would not suggest that couples who decide not to marry are irresponsible people. However should the couple separate, each will not have rights to assets they probably deserve. In fact, I think same-sex marriage is a welcomed addition because divorce proceedings will be more enlightened with regards to access to the children.
Define marriage personally how you want, but the legal role should only be to recognize that the married party agree to take on the responsiblity for all that occurs in their union (children, physical assets, capital assets, etc.). In this role, polygamy will never catch on widely I would suspect, as most inefficient institutions do not, because in the event of divorces a man would have to spread his assets among many women and pay child support until he's barely left with a dime. Not to mention, the majority of women will not want to share their partner.
And animals consenting to sexual intercourse with a person? Mr. Ed didn't actually speak, for the person worried about animal/human marriages.

Grant Evans

Would we all agree that the U.S. (or for that matter, any state) could just eliminate marriage all together as a governmentally-licensed institution? Why have marriage at all? Why not allow religions to perform whatever ceremonies they like to join together consenting adults in "marriage", as that institution is defined in said religion, and then have the state keep out of that religious instituiton all together. No community property, no tax breaks, nothing that treats that institution differently than two roommates. If they'd like to contract for certain things, like joint tenancy, community property, additional insured on a policy or child custody, etc., then let them. Otherwise, child custody is left to the courts to determine what is in the best interest of the child, and property belongs to the person who paid for it.

Why have marriage at all? Maybe that is the question to begin with.

I understand that eliminating marriage as a state-sponsored institution would have huge ramifications and would be very costly, but that begs the question - Why did it become so ingrained in the first place? Why have tax breaks and lower transactional costs for "married" couples?

Louis Kessler

While sophisticated urbanites might be ready to do away with the institution of marriage, I don't think the rest of the country is able, especially where there are higher concentrations of "traditional" families with stay at home moms. Community property and other similar divorce laws are set up to protect the interests of women. Also there are certain efficiencies gained with the institution of marriage. You can't count on everyone drafting a will for instance, and if there was no legal tie between husband and wife, a stay at home mom would be SOL if her husband died intestate.

If anyone wants an example of why recognizing gay marriage as a constitutional matter is not only just but efficient from a legal perspective, consider the following story from Salon.com keeping in mind the reality that same sex couples already live as married couples in every state:

"Lesbian custody tragedy
Nine years ago, a lesbian couple decided they wanted a child. Unable to conceive one through artificial insemination, they decided to adopt. Since Kentucky law forbade a gay couple to formally adopt the child, Brenda Fawbush decided to let her partner sign the paperwork. Although both women cared for their daughter until the couple split three years ago, the Kentucky Supreme Court ruled last week that Fawbush had no legal custody of her child.

Fawbush had sued for custody and visitation rights when her former partner didn't let her see the girl following the bitter separation. But the judges unanimously agreed that Fawbush was not the girl's "de facto custodian" because she was not the primary caregiver, despite "participating substantially in the support and rearing of a child for a significant period of time." A lower court had ruled that she couldn't apply for such rights because although she was the primary breadwinner, she was not the primary caregiver. Under state law, she had to be both.

Fawbush argued that she had performed a "sufficiently parent-like role in the life of the child." As a result, her lawyer, Bryan Gatewood, told the court the child would be "permanently severed from one of the only two parents she has ever known."

While the courts play with terminology, a woman who nobly supported her child financially and emotionally hasn't seen her in three years. And a child has lost a woman who loved her."

If these two people raised this child, both as equal parents, how is it just that the one gets sole custody and can keep the other from seeing her child? And consider how inefficient not recognizing gay marriage is, when gay people are functionally married already. Think of the time and money and legal resources that would have been saved in this instance.

Frederick Hamilton

Virtually all of the comments so far on this topic are centered around gay marriage. Professor Stone's proposal was this: "A third of the states and some two hundred cities already have such laws and the federal government already prohibits discrimination on the basis of sexual orientation in federal employment. A federal law of the sort I suggest (such a proposal has been floating around Congress for more than a decade) would bring sexual orientation into line with race, color, religion, sex, national origin, disability, and age. It would not address the hot-button issues of marriage and the military, but would go a long way towards recognizing that the United States will no longer turn a blind eye towards discrimination against an individual because of his or her sexual orientation."

My belief all along was that such a bill as proposed by Professor Stone would indeed simply be a back door way of legalizing gay marriage and by way of "sexual orientation" also legalize multiple partner marriages (bigamy and polygamy).

All of you respondents obviously feel the same way as all we are talking about now is Bob marrying Bill and Sally marrying Margaret.

Sure, if one were homophobic, it would be great irony and fun to have gay couples experience the delights of marriage talked about above: divorce, custody battles, asset allocation wars, mounting legal bills, experiencing the fun of family court, visitation rights, et al.

Consider me an agnostic on the efficiencies of marriage. Granted there are in some instances tax advantages. And spouses can gain Social Security benefits. But when I see and experience marriage, I can't get too excited about efficient and money saving. The only real reason for a marriage is to raise children in a family enviornment. True. Just as the only real reason for owning a pistol is to kill another human being. It is true some pistol owners target shoot. Rare. That pistol is to kill a person. That marriage is to raise a child. Apt analogy? I think so. Yeah before you get too crazy some people marry and don't want children, but I am making my point in the main.

Some states don't let gay couples adopt and some do. What would Professor Stone's bill do about that? Is it "fair" that Bill and Bob can adopt in NY but not in KY? Does the constitution's equal protection wording allow Bill and Bob to adopt in KY?

Are we sure yet of the consequences of Bill and Bob raising a child from the perspective of what is best for the child? Or Sally and Margaret raising a child? I ask this seriously, not to provoke vitriolic attacks please.

Anyway, we indeed have come a long way from Professor Stone's federal bill outlawing discrimination based on "sexual orientation". The proverbial slippery slope.

Again, in the main, same sex marriages are not for raising children. Changing the definition of marriage to accomodate same sex couples is an issue best left to the states. That would allow for people as Milton Friedman would say to "vote with their feet". On both sides of the equation. If you feel strongly about the issue you might just move to Utah. Or on the other side, California. This is not a Constitutional issue. Nowhere, nesting in the lucanae of the Constitution is there an answer to same sex marriage, other than same sex marriage fits nicely into the 10th Amendment. And since same sex marriage qualifies for 10th amendment privelege, so does the Defense of Marriage Act. DOMA

Louis Kessler

1. Where do you get the idea that
"same sex marriages are not for raising children"?

Come out to San Francsco sometime and I'll introduce you to some same sex families.

2. "Changing the definition of marriage to accomodate same sex couples is an issue best left to the states"

Do tell Frederick where marriage is defined affirmatively as only between the opposite sex. I am unaware that its, but I certainly could be wrong.

3. Do you not think that laws discriminating against sexual orientation should be subject to heightened scrutiny? If not, why? And if so, how is it not a 14th Amendment issue?

This issue is about life and liberty and equal protection of the law. I find it hard to understand how anyone could say it should be left to the states to decide.

Life is a whole lot more complicated than being able to, or worse being forced to vote with your feet on a single issue, so saying one could move to a state where it is legal is not a satisfying solution for gay couples in Georgia who would like to stay in Georgia for any number of other reasons, including jobs and family.

Again, unless there was an important state interest in keeping gays from marrying, I find it hard to come up with a reason states should be allowed to discriminate. You are making the same states' rights arguments as did southern racists during the civil rights movement.

Have we come up with a important state interest yet? Something other than religion, fear and bigotry?

As David Byrne says:
Still waiting...

The Law Fairy

Frederick, you're the one who brought up marriage in the first place. That most people who are against discrimination also favor same-sex marriage is not an argument against discrimination. You are the one who raised what you now seem to deem a red herring. So it's disingenuous or you to now point your finger and say "see! I told you so!" If you don't think an issue is relevant, don't bring it up. Clearly, however, you do think the issue relevant to non-discrimination. And the rest of us presented sensible counter-arguments.

Frederick, maybe *your* purpose in getting married would be to have children, but I hope I don't need to reiterate what many people here have already pointed out: *constitutionally speaking*, this is not the purpose of marriage, unless you think the Court is on the verge of overturning Eisenstadt v. Baird (hint: it's not). And many people purchase guns to hunt or shoot animals rather than people.

You say that same-sex marriage is not about raising children. Oh? Did you not read Louis' story in the comment immediately above yours?

Frederick Hamilton


1 I get the idea same sex marriages "in the main" are not about raising children from my gay couple friends. I don't have statistics, but if you do, other than taking me to San Francisco, can you come up with what percentage of homosexual couples are raising children compared to heterosexual couples (regardless of marriage status, we already know most homosexual couples as of now can't marry).

2 Yes Louis you are wrong. Marriage is defined affirmatively as between one man and one woman in I believe 34 states. It has resided as a states issue for some time now. Keeping it as an issue withing the 10th Amendment is not novel to me. It is also considered quite solid Constitutional law by many although admittedly not by you.

3 No I don't think laws that outlaw discrimination against sexual orientation deserve any heightened scrutiny. Simple observance and compliance with those laws will suffice. And I approve of Professor Stone's new federal law as put forth by him and as articulated by him that it would not impact gay marriage or don't ask don't tell.

Finally, their is no important interest in states keeping gay couples from marrying, unless a particular state wants to. As 34 or so of them apparently do. Conversely, there is no federal interest in allowing or not allowing gay couples to marry.

The 10th Amendment to the Constitution is not there to let "States discriminate". It reads pretty clearly to me. States have rights. That's how I read it. Not that States get to establish religion, promote fear and support bigotry. I guess we are divided on the reading of the Constitution. Please, don't try to smear me with the tired "southern racists" epithet when I disagree with your interpretation of the importance of gay marriage as it relates to Constitutional law.

Louis Kessler

I don't have the time. But I'll bet while less, it is not that much less than hetero couples, especially these days.

I should have clarified my #2.

How many states had these laws defining marriage as between a man and woman before oh, 1990 when this issue became a political one? If I'm not mistaken Clinton, while I was in college, signed the defense of marriage act, which defined marriage between a man and woman as a matter of fed law.

3. I'm not sure what you answer meant. So you support legislation like what Prof Stone suggests, but you don't support intermediate scrutiny for laws discriminating against people based on their sexual orienatation? I don't get it. Why would gays be worthy only of legislative protections as a group and not constitutional ones? (Other than wanting just some equality but not total equal protection for gays) Is there a reason you can cite why that makes sense?

Louis Kessler

"Conversely, there is no federal interest in allowing or not allowing gay couples to marry."

Well, outside of the fact that the issue goes directly to life, liberty and property, and smacks of unequal protection of the law, there are plenty of pragmatic efficiency arguments to make, as highlighted by the Lesbian couple story above. Further if you left it to states rights, imagine the full faith and credit and comity problems you'd run into if Texas refused to recognize California marriages.

The Law Fairy

Frederick, the 10th Amendment must be read in conjunction with the 9th, which precedes it numerically:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

And if I'm reading the same Constitution as you, the 10th Amendment reads thus:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

Hmm. That makes two mentions of "the people" versus only one of "the states."

Seems to me the Constitution is a little more concerned with the rights of individuals.


Hi folks,

I know I said I wasn't going to post for a while, but I felt compelled to correct misinformation on this thread and to fill in factual gaps.

- Franklin, I respect your right to believe that marriage should be about nothing but children. That is your policy perspective. However, it simply isn't the definition of marriage under settled precedents. Consider, e.g., Turner v. Safley, in which the Court stated that "marriages . . . are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship. In addition, many religions recognize marriage as having spiritual significance . . . therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication." Marriage is about more than just children. It is about mutual support.

- With that said, I agree that creating a stable home for children is one reason to support the institution of marriage. According to the 2000 Census, 39 percent of cohabiting same-sex partners are raising their own children. See R. Bradley Sears et al., "Same-sex Couples and Same-sex Couples Raising Children: Data from Census 2000." If we are going to take children's interests seriously, we should legalize same-sex marriage.

- There is at least a generation of children who have been raised by same-sex parents. Every sociological study on gay parenting that has been published in a peer-reviewed journal suggests that the children grew up healthily and that gay parents are no less capable than straight parents. As I noted above, see the literature review by Stacey and Biblarz. Sure, more research would be helpful, but all signs suggest that gay parents can make good parents.

- Again, if you want to consider policy arguments (as opposed to constitutional ones), consider the fact that legalizing same-sex marriages encourages gay couples to take care of each other. Stable families are a good thing, no? Plus, many gay people who currently depend on the government for things like Medicaid and Supplemental Security Income would become ineligible once their relationships become recognized as marriages because the partners will have to rely on each other before relying on the state. From a budgetary perspective, same-sex marriage makes good policy. The Congressional Budget Office, state budget offices, and think tanks like the Williams Institute all conclude that states would save money by legalizing same-sex marriage.

- Finally, I'm troubled by the fact that the little constitutional analysis in this thread has all been based on the federal constitution. All the pending marriage litigation is in state courts--generally in states with state constitutional law that is more protective of equality than the federal constitution and federal jurisprudence. That heightened standard of equality at the state level should be part of the calculus.

Grant Evans

Marriage has always (with some very rare exceptions I'm sure I could find in some obscure communities) meant between opposite sexes. The idea that this would have to be defined, that it was not common sense, has only arisen in the last few years. Allowing the government to come in and change that definition would be like allowing the government to change the definition of "justice" or "equality" in order to allow it to engage in attrocities. To argue that marriage has ever meant anything different is to ignore history. I'm not arguing that it's right, I'm arguing that historically, it's true.

Also, this is not about life, liberty or property. It's about a governmental license, issued to form an institution, to which the government gives certain subsidies, while also imposing certain obligations. Thus, it is not about what society tolerates, but about what it encourages. Why should homosexual unions be encouraged? The burden of proof, I venture, is on those seeking to change the status quo. Marriage is, for lack of a better term, the carrot at the end of the stick, used by the state as a means to an end.

What is the end? I don't know. I assume it is children (though perhaps it is encourage monogomy). Perhaps the state has decided that it wants to encourage the birth of children in homes with a man and woman who have exhibited a minimum level of commitment to each other by obtaining this license. Why? Again, I don't know, and I don't claim to be an expert on the costs and benefits of heterosexual, married couples raising children, as opposed to alternative family arrangements. But is is irrational for the state to decide to encourage such an institution over alternative arrangements?

No, I don't think it's irrational. I know that there is at least some evidence (I don't know enough about it to critically evaluate it) that children raised in homes headed by a married, heterosexual couple are healthier and happier. I could provide a bibliography here, but what would be the point, most would not read the cites, and those that did would find studies as flawed as those that purport to establish that homosexual couples tend to do as good, if not a better, job of raising kids.

Ultimately, I'm sure there is evidence that homosexuals raising kids has costs and benefits, as does heterosexuals raising kids, single men, single women, poor people, old people, disabled people, etc. How do we decide which costs are worth the benefits, for purposes of providing this "carrot"? We vote. It is a crude mechanism, I grant, but it's the best we've got.

The Law Fairy

Grant, equality and justice are freestanding concepts that don't depend on particular social structures. Do you mean to suggest that, simply because it is historical, that marriage has an inherent existence absent any particular governing body? That is to say, even in an anarchistic society that recognizes and protects no rights, justice is still a *concept* that exists. Right and wrong still exist. Whether or not anyone acts justly, justice is not hindered by the absence of enforcement. Marriage, however, is a purely social construct. The closest analogy to justice might be sexual intercourse, but even that is an imperfect proxy as it requires at least one willing partner (whereas justice requires only the bare existence of more than one person).

Grant, you're correct that it's about a governmental license -- the same way that a contract is no good absent government enforcement. So why should the government be allowed to discriminate as to who is allowed to enter into this contract? Copping out to the voters is no good, since this involves issues of constitutional rights.

Grant, you cannot argue around this issue by pretending it doesn't exist. The fact of the matter is, the government currently privileges one class of persons in a manner that is likely unconstitutional (as hinla notes, under *at least* numerous state constitutions). That's the bottom line.

Louis Kessler

And again, relying on history is no way to make policy. That was pretty much the only reason the High Court initially ruled sodomy bans were constitutional. They have since corrected that mistake, finally recognizing that historical norms are not good bases for current policy.

Constitutional principles are like operators in operator/vector calculus. They can remain constant and result in different outcomes when the underlying vector on which the operator operates changes for whatever reason, but most notably over time.

To argue that the interstate commerce clause should be interpreted exactly as it was when first written, before the Insutrial Revolution, is as foolish as arguing liberty should as well.

We must not fight change, as change is inevitable, and we must not be frightened to interpret our constitutional principles to apply to reality, as doing so is an unavoidable necessity.

Frederick Hamilton


Aha. I agree with you. This issue indeed also involves the "full faith and credit clause" of the Constitution. The rubber indeed will contact the road when some states allow same sex marriages and some don't honor them at all. The Defense of Marriage Act (DOMA) signed into law by President Clinton gives every state the right of refusal regarding same sex marriage performed in other states. Many a Constitutional scholar believes that DOMA is unconstitutional because of the "full faith and credit clause". Should the Supremes strike down DOMA because of that, then we are going to have a heck of a good show as the states and congress press ahead with a constitutional amendment defining marriage as between one man and one woman. Hang on for a tumultuous time.



I don't think your historical argument is very persuasive. It is not enough to say that marriage should be limited to opposite-sex couples just because it has always been that way. Every generation has critically assessed the meaning of marriage and tweaked the definition to make it more just. If we were to rely on a historical definition of marriage--say one from Old English common law--marriage would still be a law of coverture, whereby women's entire legal existence vanished upon marriage as they became property of their husbands. See William Blackstone, Commentaries on the Laws of England. Want to go back to history?

I disagree with you and believe that we should engage scholarship, not ignore it. My education at the U of C definitely reinforced that belief. So, if you are not going to engage the sociological literature on gay parenting, let me.

If you were to cite literature suggesting that gay parents are less capable that straight parents, you would most likely cite Paul Cameron, Robert Lerner, or Althea Nagai -- they are the most commonly cited by those who oppose gay parenting.

I think its telling that the American Psychological Association expelled Paul Cameron because his research was so shoddy. Meanwhile, the American Sociological Association publicly denounced Cameron.

As for Lerner and Negai, their "scholarship" on gay parenting has not been accepted for publication in peer-review journals. Scholars who do regularly publish in peer-review journals have roundly criticized Lerner and Negai for their shoddy work.

You are right that there is peer-reviewed literature supporting the claim that straight couples make good parents -- but that literature compares straight couples to single parents, not to gay couples. As noted above, there is already a lot peer-reviewed literature on how capable same-sex couples are at raising children. In other words, two parents are better than one, regardless of whether those two people are of the same or opposite sex.

You may think that there is a left-wing conspiracy in the academy and the major social science associations. But for anyone who's not a conspiracy theorist, I think the overwhelming social science research supporting gay parents is telling.



Yes, I am familiar with Bowers v. Hardwick. I just don't agree with it. It was an invasion of privacy by the state. I believe that any relationship or transaction between two consenting adults is a private affair to me. In the same vein, I also believe that prostitution should be legal. I also believe that all vice laws are wrong for the same reason. In addition, these laws can only be enforced by invading our privacy. IMO, any law that requires the state to infringe on our rights in order to enforce such laws, are unconstitutional. As for gay marriage, there really need be no laws. Civil marriage laws were created to "protect the wives and the children." These laws were not needed, but they were used by the state to wriggle into our private (and in the case of marriage, our religious) affairs. Marriage was only a religious institution before the state became involved. We should return to that by getting the state out of the marriage business. Then there would be no costs or benefits to marriage due to state interference. Oh, and saying that I'm not a UOC grad doesn't bother me. It just proves to me that personal attacks are the best you can do.

Kimball Corson

Marriage, best viewed I think, is not necessarily to procreate (though it can be used to that end), but is much more about two people being together on a longer term basis such that opportunity costs develop for each individual in the relationship and rights and privileges are therefore needed to guard and protect each individual in the circumstances, given those opportunity costs. Same sex unions entail the same opportunity costs and need therefore the same protective rights and privileges. These considerations have NOTHING WHATSOEVER to do with how love and/or lust is expressed between the two individuals or whether they are heterosexual or homosexual. The abhorred anal intercourse can and does occur in marriages as well as same sex unions. If that is so, are we to ban marriages as well because of that possibility?

Assuming we can get past this so-called problem emotionally, the real remaining consideration is are there untoward consequences from the grant of the same rights and privileges to individuals in same sex unions? I seriously doubt it, if the true alternatives are considered, as Law Fairy suggests. There appears to be no credible literature suggesting otherwise. If that is so, what are we left with, besides the empty strictures of “religion, fear and bigotry,” as Louis Kessler suggests. The unfortunate politicization of the issue arises because those wanting same sex unions need the political process to acquire the rights and privileges necessary for their lives and because those who view the practices of homosexuals as sodomy want a popular vote or judicial ruling to preclude those rights and privileges inasmuch as they promote sodomy in their view. If the latter group would stop minding the business of the former and check out the beam in their own eye instead, these problems would evaporate into thin air.

Louis Kessler


If you are a U of C grad, I reiterate my call for admissions office to be fired. It is hardly a personal attack, I just find it doubtful anyone who thinks as poorly as you do, including such seemingly ignorant statements as "majority rules, right or wrong, get it?" could have graduated from the U of C. Majority doesn't and shoudn't always rule, Bob, that is feature #1 of Con law.

Seriously though, do you not immediately see the severe confusion in your thinking?

You claim that this issue should not be a constutional one, yet you say Bowers was an invasion of privacy of the State. Huh?

You say "majority rules, right or wrong, get it?" then you call the state of Georgia enforing the will of the majority in Bowers an "invasion of privacy" and seem to be pleased it was overtunred and that privacy rights exist. Which is it?

Either then you are for a majority within a state being able to meddle in private affairs, or you think it is a constitutional issue such that some majority supported laws violating that privacy are invalid under the Constitution. You can't have it both ways, especially so glaringly.

You are a confused and poor thinker Bob.

"You're not too smart, I like that in a man"
[name that movie]

Grant Evans

Hinla and Law Fairy:

I think you both make good counter-points to my historical/defintional argument. Actually, the point I was trying to make (and I don't think I made it very well) is that the burden of establishing why we should change the historical definition of marriage falls on those seeking the change. Changing the definition to include gay couples is a drastic change, which would impact society in ways (both good and bad) in ways we can all only vaguely foresee.

I did not mean to ignore the sociological evidence - I simply felt that this blog is not a good place to do so. My point is that, while evidence may not be compelling that heterosexual couples are better at raising children (or, if child rearing is not the point of marriage, and encouraging monogomy is, then that heterosexuals are more likely to be monogomous), it is not irrational to think so, based on the evidence. As the law currently stands, sexual orientation is not a suspect class (though, after Lawrence, this is debatable), and distinctions based on sexual orientation are subject to rational basis scrutiny. I do not think it is irrational to look at the evidence and determine that heterosexual marriages are more desirable, and thus encouraged by the government by means of the benefits of a legally-sanctioned marriage. Now, this raises the question of whether distinctions based on sexual orientation should be subject to higher scrutiny, and I think that such distinctions likely would not survive under a strict scrutiny standard.

Here's an example: The government wants to encourage education. So it gives subsidized loans to students to pay for education. But the government does not give subsidized loans to people who want to finance the purchase of a boat. The government wants to encourage people to buy homes. So it makes interest payments on a mortgage tax-deductable. But interest payments on a financed boat are not tax-deductable. So, is the government discriminating against boat-buyers? No, because it is rational to favor education and home ownership over people having boats, and to encourage those activities. The government isn't stopping people from buying boats, it's just not subsidizing their efforts, because it rationally prefers to subsidize other endeavors. Boat-buyers are not a suspect class for equal protection purposes, and thus, the subsidies stand.

How is marriage different? Marriage allows couples to avoid certain transaction costs by qualifying for a license and taking on some additional obligations. The government, rationally, prefers heterosexual marriages, because evidence reflects that they might be better at raising children, or might be more likely to remain monogomous, two interests which the government would rationally want to promote. The government is not stopping homosexual couples from having relationships, entering into property-sharing agreements, including each other as additional insureds on their insurance, and having children (at least, as Professor Stone points out, the government shouldn't be doing these things). The government just isn't subsidizing their endeavors. Sexual orientation is not a suspect class.

Of course, this is not a very romantic comparison, and ignores the real human emotions involved. But the fact is, whether gay couple or boat-buyer, you are subject to rational basis review, and the government can rationally prefer to subsidize others choices and not yours.

Now, the counter to all of this is that the 9th Amendment and the penumbrances of constititonal privacy make marriage a right which cannot be deprived without due process from anyone. I think this argument takes us back to the definition of marriage (which, I think both Hinla and Law Fairy make good points), and to individual judge's theories of interpretation.

If I were the judge, I would rule that marriage, as a governmental license with accompanying subsidies and obligations, is not a constitutional right. The government could simply decide tomorrow to ignore people's religious ceremonies and living situations, and nobody would have a constituitonal argument. I think it is a constitutional right for people to live together however they'd like, and raise children however they'd like. But I don't think the government owes subsidies of anyone's marriage or lifestyle. Court rulings to the contrary, in my opinion, are wrong and improperly supplement the Constitution with individual judge's preferences for the institution of marriage verses other lifestyle choices.

Since the Constitution has nothing to say about marriage, I think voters can decide to subsidize certain lifestyles if they'd like, so long as its rational. (Again, this takes us back to whether sexual orientation is a suspect class. If so, the entire argument changes).

The Law Fairy


Very thoughtful post. I'm at work so I'll only respond briefly -- you appear to make an argument, essentially, that limiting marriage to heterosexuals (or, but more precisely, limiting marriage to being between a man and a woman) passes rational basis review. I disagree -- and I also believe it should be subject to intermediate scrutiny (actually, gender *and* sexual orientation ought to be subject to strict scrutiny -- but that's another argument entirely).

To lay down basics, *every* law that makes distinctions between and among people is subject to the Equal Protection clause of the 14th Amendment (or, where we are talking about a state law, the corresponding clause in the state constitution). Rational basis review is the lowest possible level of scrutiny under the Equal Protection Clause. Rational basis review requires that a law be rationally related to advancing a legitimate state interest. If, as you say, the state has a legitimate interest in ensuring solid homes for children, then heterosexual marriage must be rationally related to this interest. Here is the problem: the state allows single people to adopt children. Why is this a problem? Because it reflects pretty profoundly on the rationality of limiting marriage to opposite sexes as a means of ensuring stable homes for children. That is to say, if allowing two men to raise a child would create instability for children, then why is it permissible for one man to raise a child? It does not take a genius to make the basic observation that two guardians for a child mean more money and/or more time spent with a parent. Both of these are generally good things in the scheme of child-rearing. So the state's argument that denying same-sex couples the right to marry is for the sake of the children, does not hold water unless and until singles are prohibited from adopting.

In addition, to determine whether it is rationally related it is crucial to look to the social research. It was believed for a long time that leeches drained the body of illness. I am certainly grateful that we did not leave wellenough alone in that situation. Here, too, history is simply not enough. We are talking about the welfare of children sitting in orphanages who have no home. There are loving parents who would gladly adopt them. This is too important an issue to leave to gut feelings grounded in what are, frankly, old-fashioned notions. Contrary to your argument, the burden is on the state to justify its discrimination, as a matter of constitutional law. Thus, the state must demonstrate that its discrimination is rationally related to its legitimate interest in protecting children. In this case, research that you maybe *could* read as supporting opposite-sex-only marriage is not good enough. It is irrational to cling to long-held views in the face of contradictory evidence where there is a corresponding lack of evidence justifying the base belief. Thus, unless the state can demonstrate that heterosexual couples make better parents, limiting marriage to opposite-sex couples is unconstitutional.

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