Strengthening Constitutional Self-Government

No Left Turns

N.Y. and Georgia gay marriage decisions

Here’s the NYT’s not altogether impartial account of the 4-2 decision finding a "rational basis" for a legislative preference on behalf of traditional marriage. I haven’t had time to read the opinions yet.

Here’s the AJC account of the Georgia Supreme Court’s unanimous decision in a more technical challenge to the state’s constitutional amendment affirming traditional marriage. Here’s the opinion. For some of the political background, go here.

Discussions - 31 Comments

Thanks, Joe. Good news on both fronts. The New York State majority decision is written with exquisite straightforwardness. And a few tart lines.

Thanks for posting a link to the opinions. Chief Judge Kaye makes me happy. Too bad the majority of the Court felt differently.

I see no reason not to recognize same-sex unions, but this question should be decided by legislatures, not courts. Chief Justice Kaye’s opinion includes a good speech for the NYS Assembly or Senate. I would vote for her. Why, after our experience with Roe do so many liberals think it is a good idea to go to the courts over this matter? And why do they so readily accept the analogy with inter-racial marriage (which the NY Court of Appeals got right).

Steve -



The judicial system has consistently enforced and upheld rights guaranteed to American citizens even when they aren’t popular. Social prejudice (such as not allowing people to share in the same institutions as other Americans simply because they love a consentual adult of the same gender) is an issue Justices and Judges have always played an integral role in resolving (even if they promote such prejudice, as in Dred Scott’s case).



Personally, I think the need for this sort of "activism" is even more waranted today than it was a hundred years ago. Thanks to the Populist movement (I always get a bad taste in my mouth after I type/say that), we’ve decided it’s okay to directly elect Senators and, in some states (such as Ohio), elect our judges (even to the Supreme Court!)! So when the actually appointed Justices of the Supreme Court, especially, make a decision contrary to popular opinion, but a valid interpretation of the Constitution, I tend to sympathize more with them than I do with the Legislature (a Legislature that has increasingly become more and more of an economic aristocracy bent on protecting the hold they have on their office and the businesses that contribute to that end rather than the intellectual aristocracy who are elected based on merit, ideas, and political skills).



Sorry. That was just one big rant . . . sort of a "What Matt Hates About America" rant. Heh.

Thanks for posting a link to the opinions. Chief Justice Kaye makes me unhappy. Glad the majority of the court decided differently.

I dont know about others, but i really do support gay marriage. After all its a matter of somebody’s future, any amendments should be made keeping the people’s sensibilities in mind. That’s just i wanna say.

This is a victory, although I suspect the respite from pressure to recognize gay marriage will be brief.

And it’s a good thing...as I said on another thread:

"Marriage is not a private act, it is a social act. As far as I know, all societies have heterosexual marriage to regulate 1) reproduction, 2) inheritance, 3) gender relations, and 4) socialization of the young. Except for #2, gay marriage accomplishes none of this.
Another point is that marriage has always required social definition...it is not a natural right. Currently we define marriage as the monogamous union of one man and one woman, but if gay marriage is allowed then this (seemingly arbitrary) standard comes into question. I see no way to legitimately force other rules (e.g., age-restrictions, kin-restrictions, number restrictions) once gay marriage is allowed.

So you see, marriage has always been a discriminatory social institution, and it had better remain so for the sake of our society. What this is really about is forcing society (made up of millions of unwilling people) to accept and even celebrate what is essentially a dysfunctional (and perhaps pathological) sexual orientation. Can anyone ’out there’ explain to me why homosexuality is either desireable or ’natural’."

Dain -



I know this may be hard to accept . . . but even with gay marriage allowed in some states, society can still march on. Heh. Your post makes it seem as though everyone will stop joining in heterosexual marriage (which is absolutely ridiculous). Besides, Dain, homosexuals aren’t going to get married to a person of the opposite gender just because they’re currently not allowed to marry someone of their own gender. They just won’t get married (which doesn’t accomplish ANY of your four social acts achieved by heterosexual marriage).



I didn’t say (and I haven’t heard anyone else say) that marriage was a "natural right". But it is a right. If I’m in jail, the Supreme Court has decided that I have the right to get married. If I’m not in jail and a homosexual, I don’t have that right.



Even if we should keep marriage discriminatory like you say we should, why assume that by adding gay marriage to that social institution you will have to allow incest, marriage to minors, and polygamy (and as I’ve heard used by some of my Christian high school teachers: beastiality, which, of course, would quickly follow a decision to make gay marriage legal).



Homosexuality is desirable because homosexuals aren’t going to get married to heterosexuals just because they can’t marry homosexuals (as I stated before). At least if they are married to another person, they can raise children in a loving household (or, I guess in your opinion, an always dysfunctional one). Naturally, there are plenty of other mammals out there who have homosexual sex with their same gender. Seems pretty natural to some animals . . .

Remember your Andrew Jackson:
"Each public officer, who takes an oath to the Constitution, swears that he will support it as he understands it, and not as it its understood by others." In other words, court decisions come and go but it is legislation and executive action that win the day. I think I hear the Marriage Amendment argument wiping the dust off of its jacket.

Matt...I doubt you’ve thought this through. The real problem is that, by ignoring the fact that marriage is a social rather than private act, we open it up to all kinds of political manipulation...which will damage society. There have already been challenges to laws against polygamy...who are WE to define marriage? According to your logic, we can’t define it if it interferes with individual happiness. Your point of view reduces marriage to a strictly private act (i.e., a matter of private happiness), and thereby undermines the whole institution. Think about it...given your attitude you have no way to defend the social institution of marriage...period. Very quickly it becomes private and contractual, thereby morphing into something unrecognizable. Of course, by then, stripped of its legal uniqueness, it doesn’t do any of the things I list very well.

As for homosexual species...what a tired old chestnut. While some species (bonobo chimps, etc.) use homosexual intercourse as a social tool, no species (other than our own) produces strictly homosexual members. If they did, it would quickly be bred out of the gene pool. That whole line of argumentation is specious.

Matt...I doubt you’ve thought this through.

Jeez Dain, could you be any more arrogant? It seems like Matt HAS thought the issue through, it’s just that he’s come to a very different conclusion than you have. Assuming that all of your condescendingly-stated assertions are correct, which is a big stretch, do you really think this is even in the top ten most pressing issues facing America today? There are plenty of gay people who are, for all intents and purposes, living as married couples today and it’s not stopping heterosexual couples from getting married, having children, socializing those children, and improving "gender relations" or whatever it is you’re so worried about.

Dain,



According to your logic, we can’t define it if it interferes with individual happiness.



How do you figure that follows from my "logic"? How many advocates for gay marriage also advocate for a 10 year-old to be allowed to marry a 40 year-old? Not many. That’s because everyone realizes that, to a certain point, marriage MUST be defined. It’s the exclusion of gay marriage, between two consenting adults, that I’m questioning here, not the defining of marriage period.



As for homosexual species...what a tired old chestnut.



Yeah, it is. That’s why I was surprised I even had to bring it up. I guess you’d know better than National Geographic, though. This article seems to be talking about animals who only mate with their gender . . . Those crazy liberals.

Matt, what is your principle for admitting same-sex couples to the civil institution of marriage? Is it different from what Dain indicated? If not, what ground do you have for denying admission to - i.e., the total reshaping of marriage - polygamous groups? On this front, Stanley Kurtz has been doing yeoman’s work for a few years. Look up all his articles over at the weekly standard and the corner - including the impact of the functional equivalent to same-sex marriage (and the mentality that allows/promotes it) on marriage, childbearing, and social welfare needs and demands in Scandanavian countries.
And Phil, I happen to think same-sex marriage, as an issue at the nexus of human nature, liberty, constitutionalism, and the moral foundations of a free society, is in the top ten.

Paul -



I’ll make it real clear for you: marriage, in our society, should not have anything to do with the ability to procreate (Dain seems to make that very, very, very important). Procreation can be a positive by-product of a marriage, but that certainly should not be the goal.



I think marriage should be something between two consenting adults. I don’t advocate for gay marriage simply because they "love each other soooo much". I advocate for it because I don’t think there are negative effects from gay marriage on 1) society and 2) the individuals involved in the marriage.



That’s why I think it’s A-Ok. Not because I’m some romanticizing bleeding heart. That’s my girlfriend . . . *sigh* . . .

Dear Matt, thanks for responding. I’m sorry, however, because I’m still not sure - despite your good faith effort "to make it real clear" for me - what your principle is. You say marriage is "something between two consenting adults." The word "something" leaves a lot to be clarified. The operative word in your response is "consent," but we consent to all sorts of things. What’s the reason/aim/goal/good/s for consenting to this institution? What is marriage in your view? Looking a bit closer, you say marriage should have nothing to do with the ability to procreate. I would hope you have some idea of how radical that view is. The traditional idea of civil marriage is that it’s the legally approved institution for having procreative sex and bringing children into the world. Why isn’t that a rationally based institution? One can talk about the obvious qualifications and exceptions, e.g., sterile couples, but doesn’t monogamous heterosexual marriage satisfy a great social need?

Good luck with the girlfriend!

Paul -



"Something", here of course, means "an agreement". I thought that that would be assumed.



I don’t care what the "traditional view" about marriage is. To say that the goal/aim/reason/good of marriage is procreation is pretty radical, in my view. What I think the good/aim/etc. that comes out of marriage is, would be the mutual love and companionship that comes out of the relationship. The good things drawn out of one person by means of loving the other. The children that could be loved and raised (should the two decide to procreate or adopt). I’m not saying that to focus on procreating children is not a rational basis for the institution of marriage, I just think that it has not served the institution well in the past . . . the idea that it doesn’t matter whether or not women have orgasms, the idea that women who cannot have children are "inferior" to women who can, the idea that women are babymaking machines and shouldn’t work . . . have all stemmed from this "traditional" perception of marriage, at least according to the books from that time period that I’ve had a chance to read.



Of course we "need" children and procreation. Making homosexual marriage legal in the state of New York isn’t going to make people stop having babies. As I wrote before: if a person is a homosexual, they’re not going to have any babies regardless of their marital status.



I appreciate this discussion, though. I like hammering these differences out. Sometimes I feel like I don’t have as good as grasp on these arguments as I would like.



All the luck in the world couldn’t stop my girlfriend’s bleeding heart . . . :-D I love her, though . . . heh . . .

Good thread so far- civil, coherent, and helpful.

Matt, the problem I, and I think paul seaton, have with your definition is this: the problem you have with the traditional understanding of marriage is that it has to be between one man and one woman, and you want to eliminate the the "man and woman" part and make it "an agreement between two people." But once you eliminate the qualifier "man and woman" why can’t you eliminate the qualifier "two people"? You claim these people have a right to be married to one another because they are born attracted to eachother- just like National Geographic says. That is a legimate argument that has its merits. But what I and many others want to know is why can you believe we change the traditional understanding of marriage from two people- one man and one woman to two people, but we can’t change it from two people to one man and five women or three men and two women (please note I avoided beastiality because of the "consent" qualifier).

Gotta go, but real fast: I agree with Dain on the fact that marriage, traditionally understood as being between one man and one woman, is necessary for society. Being right or wrong aside for the time being, if man/woman marriage is not promoted, birthrates fall. If birthrates fall, lots of bad things happen, not least of which is the inability to defend ourselves. And if you think WelFare, MediCare, Medicaid, etc. are good (or at least OK) then you NECESSARILY need to at least maintain your population.

What I think the good/aim/etc. that comes out of marriage is, would be the mutual love and companionship that comes out of the relationship. Comment 16 by Matt Mingus

3 points: Firstly, Matt’s comment seems to imply that gay people cannot have mutual love and companionship without marriage. They can, and do, of course. Secondly, many gay people make life commitments and go through marriage ceremonies now. Their effort, therefore, thirdly, is not to have the right to get married, but to have the right to impose recognition of their marriages on those who, for religious or whatever reasons, do not want to recognize the marriages.

So long as the majority of voters in this republic do not want recognition of gay marriage imposed upon them, recognition of gay marriage should not be imposed upon them.

With the exception of a couple of deviant penguins, Matt’s article about animal homosexuality reinforces what I already said -- homosexual relations are used by some animals as a social tool, but permanent homosexual pair bonds in the wild are as rare as hen’s teeth. Why? Because any animals that engaged in such activity would quickly drop out of the gene pool. It’s illogical, and the fact that some people desperately want to believe that homosexuality is "natural" or "healthy" are fooling themselves.

Matt, the fact that proponents of homosexual marriage don’t want polygamy or man-child marriage is IRRELEVANT. Every interest group has something it wants...society has to provide logic for saying yes to some and no to others. In the case of heterosexual marriage, the benefits to society are quite clear. Gay marriage...many fewer benefits, and some potentially devastating legal precendents. And if homsexuality is "natural," so is the bubonic plague. I suggest we treat both as diseases/ailments rather than celebrate them as some kind of identity attainment. Becoming your disease...that’s truly sick.

First, to Andrew -



what I and many others want to know is why can you believe we change the traditional understanding of marriage from two people- one man and one woman to two people, but we can’t change it from two people to one man and five women or three men and two women (please note I avoided beastiality because of the "consent" qualifier).


Good question. I think that no tangible negative effects to either 1) society or 2) the individuals involved in the relationship come from defining marriage as a relationship between two consenting adults. I think that polygamy, in all its fun shapes and sizes, has negative effects on society (as pointed out in Reynolds at length) and the individuals involved (I see no end to the emotional exploitation of people involved in a polygamous marriage). You may disagree with that assessment, but I hope I at least gave you an answer. :)



Uncle Guido . . . you next:



First, you know I was not implying that homosexuals cannot love each other out of wedlock. Come on . . . Secondly, you’re assertion that:



Their effort, therefore, thirdly, is not to have the right to get married, but to have the right to impose recognition of their marriages on those who, for religious or whatever reasons, do not want to recognize the marriages.



Gee whiz. Cry me a freakin’ river. According to this argument, if the majority of people in the United States thought inter-racial marriage was immoral and against their "religious beliefs", it could be banned. How dare we force people to recognize something their religion says is wrong! Especially if the MAJORITY of them believe it’s wrong. Heh. I don’t think that holds water. Your marriage is not effected by two gay men getting married. You, your wife, and God can still all be cool.



And finally, the brash and intolerable Dain, who feels that homosexuals have not only "caught gay", but have "become" that very same disease . . .



That article said nothing about homosexuality among animals to be rare. If you’d like another, see here or maybe here. I am not saying that because "animals do it, it must be okay." I actually find it appalling that homosexuals base some of their arguments off of this premise (because it brings their sexual acts down to that sort of level . . . just like you like to do, Dain, by continuously insisting that procreation is what should motivate our sexual activities). I’m just trying to point out that homosexuality is not "unnatural" as you asked someone to in one of your above comments.



Also, I’ve never quite seen a statement as ridiculous as this on NLT:



And if homsexuality is "natural," so is the bubonic plague. I suggest we treat both as diseases/ailments rather than celebrate them as some kind of identity attainment.



Comparing the bubonic plague and homosexuality is something I would expect from Focus on the Family, not from people who critically analyze each other’s arguments and opinions.

Erg . . . ignore the grammar errors . . . it’s late . . . dangit . . .

if the majority of people in the United States thought inter-racial marriage was immoral and against their "religious beliefs", it could be banned.

I am not talking about "banning" gay marriage. I am talking about imposing recognition of gay marriage on people who do not want to recognize gay marriage. But, just running with your thought, say, the State of Michigan, for instance, passed a law that said all people of that state (including members of the Nation of Islam) had to recognize interracial marriages and a religion, say the Nation of Islam, said we’re going to defy that law, who do you think would win in court? I guarantee you, it’d be the Nation of Islam. Coincidentally, no court is going to succeed in imposing gay marriage on a religion which happens to say that, according to the koran, homosexuality is a capital offense.

If you insist on calling me "brash and intolerable," then this thread will get "uncivil" mighty quick. Leave the ad hominems out of it, boy.

I love the way you throw what I’ve already said at me to...counter what I’ve already said! One of your new articles says this: "For too long, she says, biology has neglected evidence that mating isn’t only about multiplying. Sometimes, as in the case of all those gay sheep, dolphins and primates, animals have sex just for fun or to cement their social bonds. " Dain, in his first post, said this: "While some species (bonobo chimps, etc.) use homosexual intercourse as a social tool, no species (other than our own) produces strictly homosexual members. If they did, it would quickly be bred out of the gene pool." You’ve yet to counter my point..."fun" isn’t a sound basis for changing a critical social institution.

I’m sorry that my recognition of strict homosexuality as abberant and indeed deeply unnatural offends you. Just so, I also regret that calling it what it is, an ailment, draws forth your indignation. Tough. For decades the gay community has done all it can to "normalize" homosexuality, but if it is natural, I see no reason not to view it as a disease. After all, it has a clear health impact.

Matt, comment 20: So it seems that the only reason why you believe that marriage can only be between "two people" is that in anything else there would be "no end to the emotional exploitation of people involved in a polygamous marriage". First of all, I cannot see how you can claim that a deviation from the "traditional" view is OK when it’s two consenting adults, but deviation from the traditional view when it’s several consenting adults causes irreparable to the individuals involved. You point out that Reynolds logically shows that polygomy is bad, but yet you ignore any other similar arguments that marriage is good (marriage properly understood). This link is a very concise, well-reasoned, and sensitive look at why traditional marriage is superior to all other lifestyles which can exist between "two consenting adults." It’s called "Marriage and the Public Good" and (the one from a much earlier post) it offers clear evidence that the union between one man and one woman is the best institution in which to raise children. I don’t know if you’ve read it or not, Matt, but if you can steel yourself and read all 40 pages I would recommend doing so. The scientists involved, social and otherwise, are not ones who would necessarily be pleased with their findings. They simply did research and reported it (grundgingly in some cases). Now do you think the fans of gay marriage could ever produce a similar piece- of course not, because the evidence does not exist to support gay marriage.

To be more clear about what I refer to under the admittedly inadequate rubric of "traditional marriage": the primary aim of the civil institution of marriage, as traditionally understood, is the social regulation of potentially procreative heterosexual sex, so as to provide an optimal setting for the procreation and rearing of children. It also civilizes males - turning sexual partners into husbands and fathers - and displays sexual complementarity, as well as helping to develop and dispaly admirable character attributes of fidelity, sacrifice, and generosity to young human beings trying to find their way in the world. As such it really doesn’t have anything to do with homosexuality. That’s a separate - and thorny - moral-political - matter.

"display" (the pedant in me made me do it)

Let me add that while traditional marriage is clearly beneficial to society, homosexual unions are at best neutral (neither being good nor bad for society). That can be debated, of course, but like I said, we’re still waiting for a comprehensive study which produces evidence proving gay marriage is a possitive good. If gay marriage is indeed neutral, then I don’t think we as a society should hold it in the same esteem as traditional marriage, which evidence seems to show is a possitive good. Thus, the NY court seems to have gotten it right. In the end, the argument for gay marriage boils down to a whiny "but if they love eachother and if we don’t let them get married they’ll feel bad and that’s not good."

Please forgive the spelling/grammar errors on the previous two posts.

"display" (the pedant in me made me do it)

I dind’t notice the typo utnil you pionted it out.Please forgive the spelling/grammar errors on the previous two posts. Nohtnig to fogrive.

"but if they love each (there, fixed it)other and if we don’t let them get married they’ll feel bad and that’s not good."

Sorry for hounding this point, but I feel as though I’ve gotta:

We’re not stopping them from getting married. We’re simply refusing to recognize it.

I think this thread’s dead, but what the hell? Uncle Guido, that’s very problematic due to the fact that people become habituated to things so easily. This generation may not recognize it, but if this is not fought the next generation will grow up with their own "peculiar institution" to deal with (that is, unrecognized gay marriage). Again we must go back to Lincoln and see that with continuous well-reasoned moral suassion a slow-but-steady progress will be made (and if not in our favor then in the favor of gay marriage).

I think this thread’s dead, but what the hell? Well let me beat the horse one more time, just to make sure.

a slow-but-steady progress will be made (and if not in our favor then in the favor of gay marriage).

I really only have two beefs with gay marriage: 1. the vast majority of citizens don’t want it; and, 2. The courts have to bastardize the Constitution to come up with a theory that gay marriage is some kind of an inalienable right. If the next generation feels differently about gay marriage than does this one, I’ve got no problem with that. But gay marriage should come about, if at all, by way of legitimate legislation rather than judicial fiat. (I say legitimate legislation because here in CA there was a state wide referendum and gay marriage was overwhelmingly voted down. Immediately after that, our legislature, voting strictly down party lines, tried to vote it in. Schwarzenegger vetoed that, stating that the voters had already addressed the issue. Thusly, I consider what the legislature did here to be illigitimate).

Leave a Comment

* denotes a required field
 

No TrackBacks
TrackBack URL: http://nlt.ashbrook.org/movabletype/mt-tb.cgi/8698