Gay Marriage Goes Back To NJ Supreme Court And We Must Not Rely On Amici
How do we fight an enemy that is not only extremely resourceful but is also, hard as it may be to admit it, much smarter than, and many steps ahead of, the rest of us?
Why did gay rights activists walk straight into the jaws of defeat in New Jersey by forcing a vote in the Senate that, since early December, they have known that they could not win?
Events moments after the Senate defeat may offer a hint.
No sooner had they lost in the legislature, Garden State Equality and Lambda Legal responded with a joint announcement that they will be going straight back to the NJ Supreme Court.
The obvious takeaway is that Garden State Equality and Lambda Legal are at once tenacious and pro-active. They never say die, no sooner than they encounter one road-block, they already have a next move.
But I believe there is more. To me, this response is much more than one more linear next move in the fight for gay marriage in NJ. This move suggests an overarching strategy.
That Garden State Equality and Lambda Legal have an overarching policy was fascinatingly outlined in a Summer 2008 essay in the Harvard Law & Policy Review, Equality in the Garden State: Litigation and Social Activism in the Struggle for Marriage Equality . Here are some choice tidbits:
“To a casual observer, the story of the marriage equality movement seems to have unfolded haphazardly… The strategy behind this crusade was far better developed than the cacophony of litigation and legislation suggests…the courtroom was only one forum for achieving social change. Equally important were the town hall meeting and the statehouse cloakroom… there was no “quick fix” and acknowledged that the movement would require diligence and patience…
the tremendous expansion in rights that New Jersey’s gay and lesbian couples have experienced thanks to Lambda Legal and Garden State Equality have demonstrated that successful litigation requires more than good brief-writing. Rather, by engaging with others’ human sensibilities, by attempting to affect people through education and emotion, and by developing connections between those who demand access to legal rights and those who already possess them”
The entire essay is a must-read for anyone seeking a deeper understanding of the marriage equality movement. It charts the story of how 20 years ago a young visionary (not Steven Goldstein) architected a long-term strategy for a movement that involved fighting and winning incremental battles on multiple fronts across the entire USA, a strategy that has stayed remarkably on target 20 years later.
But whether or not you read the entire essay, if anything is apparent from this intricate narrative, it’s that nothing in this war is haphazard or happenstance. Every step along the way on whatever battlefront is designed to reinforce and supplement every others step.
A casual look at the time-line of the NJ efforts suggests several linear phases. First a battle through the court system that ended in the Supreme Court in October 2006, then a battle in December 2006 to get the legislature to choose gay marriage. Then an effort to ensure that a State Commission would be formed that would serve to undermine the civil unions that the legislature had opted for, culminating in an effort to have Marriage Equality enacted.
But such a face-value analysis, looking at the effort from within the lens and prism of each battlefront in isolation ignores the overarching strategy that from the outset perceived the struggle as a parallel and multi-pronged effort designed so that litigation and activism complement and reinforce each other.
Let’s go back now to yesterday’s Senate vote. From a legislative perspective there was ample logic to justify forcing a vote. Garden State Equality forced Senators to go beyond promises, take sides and identify where they stand. It provided Garden State Equality with a friends and enemies list. Those to be supported in the next election and those to be opposed in primaries or in the election as the case may be.
But that is a narrow view. I am convinced that the up-or-down vote that Garden State Equality lost in the Senate strengthens their case in the New Jersey Supreme Court. It strengthens their argument that not only has the legislature not implemented the recommendation of the State Commission to provide gay marriages, the Senate has gone one further and acted against the recommendations of the State Commission which demonstrates the failure of the legislature, its inability to act and reinforces the case for direct relief from the Court.
This analysis should be a cause for great concern for social conservatives. And it is not the only cause for concern.
Because there is an even bigger picture. Garden State Equality and Lambda Legal are constantly proving the conventional wisdom wrong.
The conventional wisdom immediately after Corzine’s defeat as reported across the media was that there would be no vote at all in the lame duck session for fear of defeat. Garden State Equality proved that wrong. The conventional wisdom after the vote was pulled from the Senate in early December was that there would be no vote at all. Garden State Equality proved that wrong. The conventional wisdom since Christie won was that if Garden State Equality lost in the lame duck session they would have to wait for at least another four years. Garden State Equality proved that wrong.
And Garden State Equality proved us all wrong not so much because they try harder but more because they are smarter.
Which presents a serious problem for social conservatives as we fight to protect marriage. How do we fight an enemy that is not only extremely resourceful but is also, hard as it may be to admit it, much smarter than and many steps ahead of the rest of us?
Here is one suggestion of what we may need to do.
We may need to get smart too. We may need to not only look ahead now to our next move, we need to take some important lessons from our past defeats.
Last time in defending the State, the Deputy AG under Corzine did what many perceived to be a half-hearted job (see Andrew Bruck “Equality in the Garden State: Litigation and Social Activism in the Struggle for Marriage Equality” Harvard Law & Policy Review Summer ‘08 Vol. 2 p. 432).
This time if we want to make a difference in the next leg of the fight that will take place in the Court we cannot afford to sit back and just hope that it turns out better. This time we cannot afford to limit our approach to filing the standard, tried and trusted, routine filing of amici (friend of court briefs). We should be able to see that from what happened last time.
In Lewis V. Harris the State conceded a point of law strongly that was strongly argued in the amici and as a result the Court ignored the amici entirely.
Here is what happened in detail. The Court cited the State’s disavowal of one of the most powerful conservative arguments – the importance of mom and dad to the upbringing of children,
“The State concedes that state law and policy do not support the argument that limiting marriage to heterosexual couples is necessary for either procreative purposes or providing the optimal environment for raising children.”
The court then wrote in a footnote what effect that had on their consideration of that argument:
“Unlike the Appellate Division, we will not rely on policy justifications disavowed by the State, even though vigorously advanced by amici curiae.”
The lesson should be crystal clear. If we just file amici without doing what we can to make sure that the State makes the best case it can we are wasting our time.
So what can be done?
In the short term I believe that religious groups such as the Catholic Church and organizations such as NOM and NJFPC need to work directly with incoming Governor Christie and need to encourage their members to contact Governor Christie and urge him to ensure that this time, unlike last time, whoever represents the State’s case in the NJ Supreme Court gives it their all.
It may be tempting to fall prey to defeatism because the new AG-in-waiting is rumored to be left leaning. But lawyers are professionals, they are used to representing causes they do not believe in and doing it well, and it seems to me that clear cut instructions from Christie to the AG would go a long way toward increasing our odds in winning in Supreme Court.
But looking to the medium and long-term we need to take a leaf from the page-book of gay-rights activists. We too need to develop a strategy that combines litigation, political activism and grass-roots education. As social conservatives we are often rightfully focused on “know thyself”, but it in our endeavor to carry the message, to capture hearts and minds in the marketplace of ideas there is a parallel imperative that is no less important, “know thine competition”.
“Life. Liberty. Family.” is an American, non-partisan, non-sectarian and non-denominational grass-roots organization dedicated to American values that emphasize the centrality of Life, Liberty, Family and Community.
Excellent analysis, Dov. You are 100% correct.
January 8th, 2010 at 10:50 amDov,
Let me go on record saying that I respect your opinion. My response to this?
“Which presents a serious problem for social conservatives as we fight to protect marriage. How do we fight an enemy that is not only extremely resourceful but is also, hard as it may be to admit it, much smarter than and many steps ahead of the rest of us?”
I don’t think you can. Rush Limbaugh said it best: “They will wear you out”. Its not worth all the money and resources to fight this.
January 8th, 2010 at 11:07 amDov,
I came across this yesterday and thought it was really funny. Everybody, feel free to agree or disagree but there is alot of truth to this
Every argument against marriage equality is horseshit
While it has yet to articulate a single argument against marriage equality that meets basic standards of plausibility or verisimilitude, the gay discrimination industry has coughed up a litany of anti-equality arguments designed to appeal to the gullible and the intellectually compromised. These arguments get parroted about so frequently that even thinking people start to become inured to their irrationality and ridiculousness.
Fortunately, none of these arguments could survive the academic scrutiny of a marginally sober third-grader. In the best light, they’re just hollow platitudes. In the worst, they’re vile, desperate lies. And if you ever get caught in a conversation with a discrimination parrot—or if you want to defend marriage equality in an angry blog post or a letter to the editor—feel free to steal the simple refutations below with complete impunity.
Gay marriage will destroy the sanctity of straight marriage
Wrong. Britney Spears’ 55-hour just-for-fun marriage destroys the sanctity of straight marriage. Rush Limbaugh’s three temporary marriages destroy the sanctity of straight marriage. John McCain dating and proposing to his second wife while still married to his disfigured first wife destroys the sanctity of straight marriage.
We can’t redefine marriage
• The concept of “redefining marriage” is a linguistic distraction designed to pull the spotlight away from the underlying hatred behind “traditional marriage” propaganda. Giving gay people equal access to the rights and protections of marriage will not change the definition of marriage. Nothing about gay marriage alters heterosexual marriage. The definition of marriage between heterosexuals will remain exactly the same.
• If we hadn’t redefined marriage in the 1960s, Barack Obama would still be a bastard in the 19 states that wouldn’t allow the interracial marriage of his parents when he was born.
• Ronald Reagan, the divorced patron saint of the modern conservative theocracy, redefined marriage into something temporary and easily revocable in 1969 when as governor of California he signed the Family Law Act, leading the United States into an era of no-fault divorce.
• Other historical “redefinitions” of marriage involve the transition of marriage from a business relationship between families to a property relationship between a man and his wife and then to a relationship based on relative equality between a man and a woman.
Marriage is the foundation of society
One could argue that the true foundation of society is a successful public health policy. Or a working economy. Or an equitable system of education. Whether marriage—specifically heterosexual-only marriage as this argument goes—is also some kind of “foundation” depends on a broad range of definitions of foundation. In any case, this argument is little more than a hollow platitude designed to sound meaningful when other arguments against equality implode for lack of substance.
Homosexuality is not natural
Wrong. Since it occurs randomly in nature across all species without any identifiable outside influence, homosexuality is completely natural. Religion, on the other hand, is created entirely by the human imagination. Which makes it, by definition, unnatural.
Americans think gay people are gross
Americans think obese people, pregnant teenagers and Rush Limbaugh are gross. And they’re allowed to marry as often as they want.
Gay marriage teaches children it’s OK to be gay
Exactly. Just as organized religion teaches children it’s OK to embrace the supernatural over the real. And there are no laws against that.
I shouldn’t be forced to explain gay marriage to my kids
An unwillingness to expose children to the diversity outside their family is no justification for denying adults equal access to financial and legal protections for their own families.
Marriage is designed to produce children
January 8th, 2010 at 11:09 amNo it’s not.
• Straight marriage laws carry no reproduction requirements.
• If it did, infertile or menopausal people wouldn’t be allowed to marry.
Children deserve a mother and a father
That’s how they’re usually made, yes. But since marriage is not contingent on producing children—and vice versa—this argument is just an emotional-heartstrings-flavored distraction deployed to change the subject when other anti-equality arguments are exposed for their implausibility and desperation.
Legalizing gay marriage will open the door to men marrying dogs
No it won’t. And anyone who makes this imbecilic argument is not emotionally or intellectually fit to participate in any conversation that affects public policy.
If we allow men to marry men …
The slippery slope argument uses wild conjecture in place of reason and fact, making it the last vestige of the intellectually desperate. Since it’s based on nothing but imagination, the arguments can go in an infinite number of directions. And these arguments are easily trumped: If we allow people to vote on gay marriages, we’ll have to allow people to vote on marriages between adulterers and divorcees. If we allow Christian mythology to influence our laws, we’ll have to allow Wiccan theology to influence our laws as well. If we follow Christian mandates on marriage, we’ll also have to follow Christian mandates on adultery, divorce and the subjugation of women.
The institution of marriage is under attack by gay people
No it’s not. Gay people want to emulate marriage. The only people attacking the institution of marriage are the people currently allowed to be married: heterosexuals who divorce or commit acts of domestic abuse and adultery.
Marriage should be decided by the states
January 8th, 2010 at 11:10 amNo it shouldn’t. Speed limits should be decided by the states. Sales taxes should be decided by the states. School calendars should be decided by the states. People’s relationships, legal protections and tax benefits shouldn’t change when they drive across state lines
Marriage should be decided by voters
No it shouldn’t. Individual marriages should be decided only by the two people entering into them.
Gay people don’t deserve special rights
Equality is not a special right. Calling it a “special right” is an ugly distraction tactic designed at best to pull focus from the underlying hatred behind anti-marriage-equality arguments and at worst to mislead and inflame the passions of gullible, low-information voters.
We should just agree to disagree
People “agree to disagree” about frivolous things like music or sports teams or religious beliefs. The active denial of legal equality is not frivolous; it has real consequences for real families. Either you’re for marriage equality or you’re against equality. There’s no room for friendly disagreement in the equation.
No offense, but I don’t think gay people should marry
Believing that one class of people does not deserve equal protections under the law is extremely offensive. Especially when there is no logical, rational or even plausible reason for your belief.
I don’t hate gay people—I just believe marriage should be between a man and a woman
Denying people equality for nothing more compelling than “belief” is a form of hate. If you work to marginalize gay people, it doesn’t matter whether you act out of malice or selective interpretation of religious dogma. Either way, you are endorsing a system designed to hurt people.
Defending marriage is not hate
Wrong. Calling hate “defending marriage” is the most vile, cowardly, deliberately misleading form of hate.
I don’t believe in the homosexual lifestyle
Good. Because there is no such thing as a universal homosexual lifestyle, just like there is no universal heterosexual lifestyle or Christian lifestyle or atheist lifestyle. The “lifestyle” argument is nothing more than a gross overgeneralization built on the implication that gay people are all whores, and it’s used to demonize us in an attempt to justify denying us legal equality.
Marriage is a religious institution
No it’s not.
• Marriage licenses and marriage certificates are issued by governments, not churches.
• If it were, we wouldn’t allow atheists to get married.
• If it were, we wouldn’t allow people to get married by a justice of the peace. Or a ship’s captain. Or an Elvis impersonator.
Gay marriage is not compatible with religious belief
Gay marriage may not be compatible with selective interpretations of some religious traditions. But that has nothing to do with marriage equality. People are certainly free to embrace any religious beliefs they choose. But those beliefs apply only to their believers, and they end the moment they begin to hurt people who choose not to embrace religious theories. An elective belief in a trendy mythology does not give anyone moral authority to deny basic equalities to other people.
Homosexuality is a sin
Only to those who choose to believe in religious dogma. And religious dogma—especially when it’s used to victimize an entire class of people—is not appropriate in a discussion of legal equality.
Churches shouldn’t be forced to perform marriages they don’t approve of
They won’t. Churches have always been free to refuse to marry anybody for any reason they dream up: divorce, adultery, religion, race, gender … even basic family snobbery. On top of that, most marriage equality legislation to date includes language specifically permitting churches to continue to engage in this discrimination.
Being forced to accept gay marriages is a form of discrimination
No it’s not. This meaningless argument is simply a distraction tactic designed to make bigots look like victims.
Domestic partnership is the same thing as marriage for gay people
January 8th, 2010 at 11:10 amNo it’s not. Many rights bestowed on straight married people by institutions ranging from the IRS to insurance companies to private employers are denied to gay people in domestic partnerships. Marriage by any other name is simply not marriage.
Curt,
I don’t know where to begin – and I am certainly not going to go through a line by line refutation of the comments above. But it all boils down to you renouncing the position that equal rights have already been established under the Civil Unions law. I thought we had gotten beyond that, but you keep equivocating on that issue and going back on it.
If the law provides for equal rights and benefits, it’s equal – and the Civil Unions law mandates that all rights and benefits available to married partners be available to civil union partners. Di Marco recently cited the statutory language that I had previously posted, and he put it succinctly afterwards: it does not get any more equal than that.
“Separate but Equal” is, by definition, “Equal.” The vestiges of slavery and Jim Crow are entirely different from the mistreatment that homosexuals have received – and it is an insult to the victims of slavery and Jim Crow to equate the misfortunes suffered by homosexuals with the level of state sponsored hell that was imposed on blacks in America. Frankly, it is insulting to me as well – America has committed no such crime against homosexuals.
I also think it is pretty outrageous to post anything that rejects our right to “agree to disagree.” That statement alone demonstrates that you are trying to bludgeon your opinion into people who disagree with you. In my opinion, that is as outrageous as equating homosexual activists as axe murderers.
I also think the plain meaning of English words is important. I think about all the effort I have to go through to explain to people what the word “selfish” actually means, and how the apostles of human sacrifices co-opted and corrupted the meaning of that word to make it almost impossible to posit an independent person in society – instead we are constantly given the false choice that we either have to sacrifice ourselves to others (altruism) or sacrifice others to ourselves (the false meaning ascribed to selfishness). If people had properly defended the meaning of selfish to mean something akin to self-reliance, we would not have the spectacle of Barack Obama – and John McCain – constantly reminding us of the need to sacrifice more and more of our lives and wealth to the government.
Moreover, I do think the attack on *definition* of marriage is an attack on American culture and values. As Ayn Rand wrote in The Fountainhead,
“Don’t set out to raze all shrines—you’ll frighten men. Enshrine mediocrity, and the shrines are razed.”
That is what socialists do generally, and is what I think is being done here by Left leaning gay activists – instead of outright saying that they are destroying marriage, homosexuals are attempting to redefine the term out of existence in order to raze the shrine that is marriage.
I do not think your posts above are worthy of this debate. Whatever truth may be found in them is clearly outweighed by the falsehoods and outrageous slanders.
January 8th, 2010 at 11:44 amCurt,
I saw it somewhere recently and was going to respond but got busy.
My own take on all this is that it is light-weight “red meat for the base” – in other words, those in favor of gay marriage will “find these truths self-evident”, while everyone else will recognize it for the vulgar pretense that it is.
It takes the argument to the lowest common denominator ad-hominem attack and name-calling.
But the greatest weakness in the whole piece is that it is guilty of the very same shallowness and superficiality which it seeks to denigrate.
If I get the time I intend to track down the piece (that won’t take more than a few seconds) comment and link to my comments
January 8th, 2010 at 11:48 amCurt,
Far more importantly you wrote,
“I don’t think you can. Rush Limbaugh said it best: “They will wear you out”. Its not worth all the money and resources to fight this.”
No-doubt that is what many could have said to the young college student in the 1950s who authored “God and Man at Yale”.
That is what they could have said to the young man who ghost-authored Barry Goldwater’s “Conservative Mind”.
That is what they would have said to those students, young men and women who supported Goldwater in 1964.
But it is thanks to them that a Governor of California won two terms in the White House beginning in 1980. It is thanks to them that we have a conservative movement in America today.
So, I believe that they may be able to wear Rush out, but they will not be able to wear us out.
No, Curt, I am optimistic and full of hope.
January 8th, 2010 at 12:03 pmEd,
First let me clarify, i am not the author of that posting and I am not laying any claim that I agree with it 100%. I was hesitant to post it but decided to because of what seemed to me, a disturbingly high amount of uneducated and baseless comments. I felt that there were many instances that hit the nail right on the head.
My posting of that does not mean I am renouncing anything. I still hold the position that the NJ Civil union laws provide the same rights as marriage.
However, i want to also point out that this was written addressing the gay marriage debate as a whole, not the Nj Civil union laws directly. You will even note that the author makes reference to “Domestic Partnership” laws.
““Separate but Equal” is, by definition, “Equal.” The vestiges of slavery and Jim Crow are entirely different from the mistreatment that homosexuals have received – and it is an insult to the victims of slavery and Jim Crow to equate the misfortunes suffered by homosexuals with the level of state sponsored hell that was imposed on blacks in America. Frankly, it is insulting to me as well – America has committed no such crime against homosexuals.”
Separate but Equal is Separate but Equal whatever form its in. Crimes and discrimination against Jewish people, minorities, Catholics, or whatever group is wrong in any form its in. Slavery was wrong, Separate but Equal is wrong.
“I also think it is pretty outrageous to post anything that rejects our right to “agree to disagree.” That statement alone demonstrates that you are trying to bludgeon your opinion into people who disagree with you. In my opinion, that is as outrageous as equating homosexual activists as axe murderers.”
Ed, look at what i wrote in #3
“I came across this yesterday and thought it was really funny. Everybody, feel free to agree or disagree but there is alot of truth to this”
Obviously I am not trying to bludgeon anybody. I never said I agreed with the author’s “agree or disagree” remark.
“I also think the plain meaning of English words is important.”
I agree with you 100% which is why I have my position.
“Moreover, I do think the attack on *definition* of marriage is an attack on American culture and values.”
I am very disappointed to hear you say that Ed. Considering the American culture has only recently even acknowledged gay people to be visible in society, I fail to see what kind of attack you are trying to describe?
“That is what socialists do generally, and is what I think is being done here by Left leaning gay activists – instead of outright saying that they are destroying marriage, homosexuals are attempting to redefine the term out of existence in order to raze the shrine that is marriage.”
And what do you call Civil Unions that provide all the same rights as marriage to couples who are living their lives as married couples? If it looks like a duck and it sounds like a duck, then lets call it a Kangaroo. THAT is redefining marriage.
“I do not think your posts above are worthy of this debate. Whatever truth may be found in them is clearly outweighed by the falsehoods and outrageous slanders.”
While that is fair and your opinion Ed,
January 8th, 2010 at 12:11 pmI want to point out that the majority of these debates have also included falsehoods and outrageous slanders from quite a few people on the other side of the argument as well.
Dov,
You are right, I found parts of the article to have degrees of superficiality and name calling.
And to clarify I AM NOT IN 100% AGREEMENT THAT ARTICLE I POSTED. I felt however it was an appropriate counter point to alot of the baseless claims that have been made.
“But the greatest weakness in the whole piece is that it is guilty of the very same shallowness and superficiality which it seeks to denigrate.”
I agree and thats one of the reasons I posted it.
January 8th, 2010 at 12:15 pmDov,
“No, Curt, I am optimistic and full of hope.”
Hope for what? What are you fighting for and fighting against? If I got married and lived a respectable life, kept doing my job and paid my taxes how is that interfering with your life?
Don’t you see that gay people don’t want this second class label stuck over their heads? Gay people in society have come a long way since Regan was elected in 1980, the year I was born. the Conservative movement non-withstanding i find the hiding behind Conservatism as a reason to reject gay people in society as unacceptable and baseless.
January 8th, 2010 at 12:19 pmWhen we already knew the winner and loser of S.1067 prior to the Senate session, I questioned why this vote was forced. Your explanation makes sense of it despite Goldstein’s sobs.
However, Christie’s intentions regarding the courts, and social issues vs. fiscal issues, have been exposed. He doesn’t want to waste his time with social issues *no matter who comes begging*. He didn’t want to deal with homosexual marriages in the campaign, and he won’t want to deal with it in office. His stated priority is fiscal matters and, in that regard, he probably has the support of most taxpayers with one major caveat: our liberal/activist courts have not only cost us social battles but expensive fiscal ones as well, i. e. COAH, Abbot, etc.
Christie has just allowed Corzine (see link below) to further defile our court system with more liberal judges in a compromise with Corzine who will, in turn, abandon his high profile nominations. Again, it goes to the heart of Christie’s trend to presently care less about our activist court system. He’s shrewd enough to know that this only postpones the probability of more expensive court decisions by these liberals, gambling he will save money now better controlling these high profile jobs/expenses in authorities such as NJ Sports and Exposition, and be gone before the proverbial poop hits the fan with another budget busting decision by these supremacists.
The next test of this hypothesis comes when Justice Wallace’s first term ends in May, and I hope it is disproved.
January 8th, 2010 at 12:58 pmhttp://www.nj.com/news/ledger/jersey/index.ssf?/base/news-15/126283291428870.xml&coll=1
Curt,
You wrote,
“i find the hiding behind Conservatism as a reason to reject gay people in society as unacceptable and baseless”
Conservatism does not provide any reason at all to reject gay people. I would go even further. Conservatism does not inherently and in and of itself necessarily provide any long term reason to oppose homosexual marriage.
Here is what one of the most conservative justices on the US Supreme Court wrote in his famous dissent to Lawrence V. Texas,
“Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts–or, for that matter, display any moral disapprobation of them–than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change. It is indeed true that “later generations can see that laws once thought necessary and proper in fact serve only to oppress,” ante, at 18; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.
One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts–and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal).”
That said the manner in which gay marriage is being introduced here in the United States does great violence to conservatism as a whole. This point is understandably lost on those homosexual conservatives whose own personal predicament overpoweringly informs their attitude to the specific question of gay marriage.
The rest of us, however recognize the inherent radicalism in the approach of gay rights activists and we see the inherent threat it poses to conservatism as a whole in its true colors.
It is in the face of this broader sense of the future of conservatism which currently faces many existential threats among which the current gay rights movement is only one that I am hopeful and optimistic.
January 8th, 2010 at 1:22 pmDov,
“Conservatism does not provide any reason at all to reject gay people. I would go even further. Conservatism does not inherently and in and of itself necessarily provide any long term reason to oppose homosexual marriage.”
I agree with you on this. One of the reasons that i have respect for Conservatism is because it preserves many of the great foundations on which our society was built. However, history has proven time and again that society gets it wrong as well. Treatment of gay people is the latest of those instances. Its only been relatively recent, approximately 40 years that gay people went from being outcasts to almost completely accepted.
” Here is what one of the most conservative justices on the US Supreme Court wrote in his famous dissent to Lawrence V. Texas”
One of the most? Lol, is it safe to say they don’t come more Conservative than Scalia?
And is it safe to argue that Scalia was in the minority of this issue and an appropriate response would be the Court’s holding:
“The second post-Bowers case of principal relevance is Romer v. Evans, 517 U.S. 620 (1996). There the Court struck down class-based legislation directed at homosexuals as a violation of the Equal Protection Clause. Romer invalidated an amendment to Colorado’s constitution which named as a solitary class persons who were homosexuals, lesbians, or bisexual either by “orientation, conduct, practices or relationships,” id., at 624 (internal quotation marks omitted), and deprived them of protection under state antidiscrimination laws. We concluded that the provision was “born of animosity toward the class of persons affected” and further that it had no rational relation to a legitimate governmental purpose. Id., at 634.
As an alternative argument in this case, counsel for the petitioners and some amici contend that Romer provides the basis for declaring the Texas statute invalid under the Equal Protection Clause. That is a tenable argument, but we conclude the instant case requires us to address whether Bowers itself has continuing validity. Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants.
Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons.”
http://www.law.cornell.edu/supct/html/02-102.ZO.html
“One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts–and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal).”
I disagree. Gay people have a long way in society but there is still a great deal amount of bigotry and ignorance out there. Its not fair that todays generation should have to wait while the older one dies out. Inter racial mariage was not put to the vote of the people either, as was decided in Loving v Virginia.
“That said the manner in which gay marriage is being introduced here in the United States does great violence to conservatism as a whole. This point is understandably lost on those homosexual conservatives whose own personal predicament overpoweringly informs their attitude to the specific question of gay marriage.”
I disagree. It will do no more damage that what Loving v Virginia did to interracial marriage. If anything, the Separate But Equal system that is being advocated and condoned is what is doing Conservatism a disservice.
“The rest of us, however recognize the inherent radicalism in the approach of gay rights activists and we see the inherent threat it poses to conservatism as a whole in its true colors.”
I’ve seen enough true colors to know the real reasons of too many gay marriage opponents. Hiding behind a threat to “Conservatism” doesn’t fly with me and as you said in your first paragraph, it can only go on for so long.
“It is in the face of this broader sense of the future of conservatism which currently faces many existential threats among which the current gay rights movement is only one that I am hopeful and optimistic.”
Gay rights are not a threat. As opposed to the real threats to Conservatism, it will be the continual use of it against gay people that will be its downfall. The once unsinkable Titanic can only take on so much water before it will sink.
January 8th, 2010 at 1:55 pmDov (and Curt),
Scalia’s majoritarianism does violence to the Constitution and should not be endorsed by any Conservative. The government of a free society is guided by the principle of protecting individual rights, not protecting the power of the majority. Federalist 10 goes to great lengths to explain that the one thing the Framers feared most was majoritarian tyranny, because the usual democratic processes were almost powerless to stop it. That is why they created not just a limited government, but, as explained in Federalist 51, also fragmented power both within the Federal government and between the Federal government and the states.
God help me for saying this, but Joe Biden actually did this nation a great service when he threw Robert Bork the curveball about what an originalist would say is the meaning of the Ninth Amendment – at a complete loss for words, Bork lamely stated that the Ninth Amendment was as if an “inkblot” had fallen onto the original Constitution making it impossible to read. Or in other words, Bork said that he was willing to substitute his view of what the Constitution *should* say for what it actually said.
The majority has the power to make decisions – but only within the delimited sphere of action open to a properly limited government. The majority does not get to vote on anyone’s rights.
However, at least in New Jersey, gay marriage is not about rights because Civil Unions confers fully equal rights and benefits to civil union partners as to marriage partners – which even Curt acknowledges.
PS Curt: At least with regard to NJ, you should stop making statements like “”Gay rights are not a threat.” This debate is not about rights but rather about a title.
January 8th, 2010 at 2:16 pmCurt,
Re: #9
By posting those comments, you are at least implicitly endorsing their reasonableness, even if you throw out a disclaimer that you don’t agree with all of them.
There is no way around the fact that you are trying to change the definition of “marriage.” Because you keep bringing up the analogy to slavery, I will use it this time to make the point.
Under the Constitution, slaves were referred to as “3/5ths of a person” and in other places (such as the provision of the Constitution that authorized Congress to ban the slave trade after 1808) simply as “persons.” There was an argument to be made (and some abolitionists in fact did make it) that blacks were always “persons” and that the Constitution could reasonably be interpreted to means as such. The argument never carried the day, however.
By contrast, marriage has never encompassed homosexual relationships, even by implication. That is in fact the genesis of this whole debate. The word “marriage” has a specific meaning in the English language – and that meaning is the union of one man and one woman.
Even the Loving case reflects this distinction. Even though there were legal prohibitions on interracial marriage, the marriage law also provided that marriage was between one man and one woman of the same race. But because a black man and a white man were also implicitly “one man” the Loving case did not involve a redefinition of marriage – it involved a striking down of a racial classification that both received special consitutional scrutiny because of slavery and also was irrelevant to the essential definition of marriage.
The distinction between homosexual and heterosexual, by contrast, goes to the heart of the defintion of marriage because as I wrote, the definition is “one man, one woman.” This does not mean that the meaning of words or phrases do not change over time. But make no mistake, this involves a change in the meaning of the word “marriage.” This is not something that homosexuals should be allowed to dictate by legislative – or judicial – fiat to the rest of the population.
January 8th, 2010 at 2:32 pmEd,
“However, at least in New Jersey, gay marriage is not about rights because Civil Unions confers fully equal rights and benefits to civil union partners as to marriage partners – which even Curt acknowledges.”
I do indeed. Equal rights but with a Separate title.
“PS Curt: At least with regard to NJ, you should stop making statements like “”Gay rights are not a threat.” This debate is not about rights but rather about a title.”
True, I mis-spoke. Gay marriage is not a threat is what I should have written in this instance.
January 8th, 2010 at 2:49 pmEd,
“By posting those comments, you are at least implicitly endorsing their reasonableness, even if you throw out a disclaimer that you don’t agree with all of them.”
Absolutely not, thats the whole point of the disclaimer. You can’t say that the majority of those arguments have not been brought up on this blog numerous times. I was hesitant to post it because of some of the positions that were listed but I was also curious as to the respense that would come from it.
And you do give intelligent and thought out responses ed.
“There is no way around the fact that you are trying to change the definition of “marriage.” Because you keep bringing up the analogy to slavery, I will use it this time to make the point.”
Slavery was brought up in #6, I was just responding to it. However, while I am not comparing gay marriage to what the blacks went through with slavery I still feel that treatment of minority groups is wrong, no matter the degree of severity.
“By contrast, marriage has never encompassed homosexual relationships, even by implication. That is in fact the genesis of this whole debate. The word “marriage” has a specific meaning in the English language – and that meaning is the union of one man and one woman.”
RIGHT. And WHY has it never included gay people….because gay people were never an accepted part of society until recently.
“Even the Loving case reflects this distinction. Even though there were legal prohibitions on interracial marriage, the marriage law also provided that marriage was between one man and one woman of the same race. But because a black man and a white man were also implicitly “one man” the Loving case did not involve a redefinition of marriage – it involved a striking down of a racial classification that both received special consitutional scrutiny because of slavery and also was irrelevant to the essential definition of marriage.”
Bearing in mind that many changes have happened since Loving, not the least of which was Lawrence V Texas it would seem entirely understandable that gay marriage wasn’t taken into consideration.
But I would like to point out that interracial marriage was made legal through Loving V Virginia not by the voice of the majority but through the legislative system. And do we have the same problem today with interracial marriage as we do with abortion?
“The distinction between homosexual and heterosexual, by contrast, goes to the heart of the defintion of marriage because as I wrote, the definition is “one man, one woman.” This does not mean that the meaning of words or phrases do not change over time. But make no mistake, this involves a change in the meaning of the word “marriage.” This is not something that homosexuals should be allowed to dictate by legislative – or judicial – fiat to the rest of the population.”
you got it wrong ed. “One man one woman” is not the heart of the matter, its the superficiality. You did not marry your wife because she is simply a woman, you married her for the reasons that you uniquely loved her and wanted to build a home with her. While you are one man one woman on the surface its the heart of your relationship and why you fit together that truely defines you two.
January 8th, 2010 at 3:12 pmCurt,
Marriage includes two essential components: a “union” and that such union be “of one man and one woman.”
You are correct that the “union” is the more fundamental of the two, and if there were not civil unions for homosexuals I would be inclined to agree with you. But we do have civil unions in New Jersey – so homosexuals have a perfectly valid legal means of obtaining the legal benefits of union.
Because New Jersey allows homosexuals all of the legal rights and benefits of a “union” with the civil union statute, the only essential left for the definition of marriage is that it be “of one man and one woman.”
Di Marco has previously argued that Civil Unions should be opened up to heterosexual couples. I disagree with his position, but I ask you: if the state were to deny a Civil Unions license to a heterosexual couple, do you think the heterosexual couple has suffered any cognizable legal injury? If so, I’d like to hear it.
January 8th, 2010 at 3:28 pmEd,
“But we do have civil unions in New Jersey – so homosexuals have a perfectly valid legal means of obtaining the legal benefits of union.”
This why I think its absurd. The unions are good enough to recognized for benefits but not good enough for titles. It doesn’t work like that. Call it what it is.
“Because New Jersey allows homosexuals all of the legal rights and benefits of a “union” with the civil union statute, the only essential left for the definition of marriage is that it be “of one man and one woman.”
Is this the definition of marriage overall or the definition of marriage in New Jersey? Because gay marriage is legal in many other parts of the world, including Portugal as of today.
“Di Marco has previously argued that Civil Unions should be opened up to heterosexual couples. I disagree with his position, but I ask you: if the state were to deny a Civil Unions license to a heterosexual couple, do you think the heterosexual couple has suffered any cognizable legal injury? If so, I’d like to hear it.”
Not sure what you mean by a cognizable injury. I rarely agree with him but DiMarco makes a point about this being a Separate but Equal system. Its also a form of discrimination against straight people but I can’t see why any straight couple would prefer a Civil Union over marriage.
If there were a system where gays and straight would have the option of chosing to enter into either marriage or a civil union i would be ok with that. But that would also be financially stupid since they provide the same benefits.
January 8th, 2010 at 3:45 pmCurt,
You wrote:
“Slavery was brought up in #6, I was just responding to it. However, while I am not comparing gay marriage to what the blacks went through with slavery I still feel that treatment of minority groups is wrong, no matter the degree of severity.”
On the contrary, your entire argument about “Separate but Equal” is a slavery/Jim Crow based argument that fails entirely without the analogy to slavery.
January 8th, 2010 at 3:45 pmCurt,
By “cognizable injury” I mean a wrong that required legal redress, whether judicially or legislatively.
I do not see any cognizable legal injury to a straight couple that is barred from obtaining a Civil Union. For the same reason, I see no cognizable legal injury to a homosexual that is barred from obtaining a marriage, so long as the Civil Union option is available.
January 8th, 2010 at 3:48 pmEd,
“On the contrary, your entire argument about “Separate but Equal” is a slavery/Jim Crow based argument that fails entirely without the analogy to slavery.”
When I make these Separate But equal debates I think of two water fountains. One is labeled for whites only, the other is labeled for blacks only. However they both provide the same water. Then I picture a marriage liscense for straights only and a civil union liscense for gays only. They both entitle the exact same benefits but are separate documents.
This is how it boils down in the simplest forms to me. slavery is just one example, and among the worst of many crappy instances a minority group has not been treated equally in this country.
January 8th, 2010 at 3:51 pmEd,
“I do not see any cognizable legal injury to a straight couple that is barred from obtaining a Civil Union. For the same reason, I see no cognizable legal injury to a homosexual that is barred from obtaining a marriage, so long as the Civil Union option is available.”
Legal injuries were not the reasons of the ruling of Brown v Board of Education.
“Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system…”
I 100% believe segregation of gay people from the population has an eefect on kids as well. I went through absolute hell when I was in the closet as a teenager and that had a huge impact on how i turned out as an adult. And whats also heart breaking is that there are still a high amount of kids who kill themselves because they can’t handle being gay in this society.
http://www.thetrevorproject.org/home1.aspx
So don’t say that Separate but Equal is justifiable because you don’t see a legal redress.
January 8th, 2010 at 3:58 pm“DiMarco makes a point about this being a Separate but Equal system.”
I never made such a point. I have always maintained the civil unions discriminate against heteosexuals. I was against them from the start. If they are to exist, they must include heterosexuals.
January 8th, 2010 at 4:00 pmIf Civil Unions were permitted for heterosexuals, not only would their be no discrimination, the “separate but equal argument” would be moot.
January 8th, 2010 at 4:04 pmDiMarco,
“I never made such a point. I have always maintained the civil unions discriminate against heteosexuals. I was against them from the start. If they are to exist, they must include heterosexuals.”
Uh, you just said it yourself. Why do the Civil Unions discriminate against heterosexuals if they provide the same rights as marriage, DiMarco? Because they are (wait for it)……..
January 8th, 2010 at 4:08 pmDimarco,
“If Civil Unions were permitted for heterosexuals, not only would their be no discrimination, the “separate but equal argument” would be moot.”
Yes it would. But they don’t.
January 8th, 2010 at 4:09 pmIf Civil Unions were opened up to heterosexuals but marriage not opened up to homosexuals, the Civil Unions law would not longer be a Separate but Equal construct; it would instead be an inferior, watered down version of marriage. That is why I would oppose allowing heterosexuals to enter a Civil Union – just as I oppose men being allowed to enter women’s bathrooms and locker rooms.
January 8th, 2010 at 4:18 pmEd,
Going by my answer in #20
“If there were a system where gays and straight would have the option of chosing to enter into either marriage or a civil union i would be ok with that. But that would also be financially stupid since they provide the same benefits.”
You actually brought up something I’ve been meaning to ask you. If the equal rights Amendment were to pass would that allow men to enter into womens bathrooms?
I have a friend who tells me alot of women don’t want to see it passed because that would them eligible for the draft.
January 8th, 2010 at 4:24 pmCurt,
I don’t think passage of the ERA would allow men to enter women’s bathrooms. Again, the separate but equal facilities would be … equal.
As for the draft, it is itself a much, much more flagrant violation of individual rights than discrimination at the hands of the government. I oppose the military draft for everyone, men and women, straight or gay.
January 8th, 2010 at 4:30 pmEd,
I think being gay is one of the ways to get out of the draft
You make a good point though. The ERA was just something that came up during a conversation I was having with a friend the other day.
January 8th, 2010 at 4:34 pmEd,
Re #29,
We oppose men in women’s restrooms and vice versa because they do not qualify for it. Like a nut and bolt, like a plug and socket, there is no separate but equal, there is no discrimination, there is only qualifications. Same sex people do not qualify to be married because they are not complementary beings.
Curt,
Re #27 & #28,
I know of heterosexuals that would love to have all the benefits of civil unions. Unfortunately, they are denied by the laws of NJ.
There is your discrimination. Homosexuals will deny them the same rights that they have so they can continue to make the same bogus “separate but equal” diatribe.
January 8th, 2010 at 5:14 pmI hope the Supremes end “separate but equal” once and for all. Then all you gay bashers and homophobes out there can find some other group to pick on, like bicycle riders.
January 8th, 2010 at 5:24 pmDi Marco,
“I know of heterosexuals that would love to have all the benefits of civil unions. Unfortunately, they are denied by the laws of NJ.”
As Ed has pointed out about FIVE BILLION TIMES its not about the benefits. They can get the benefits by getting married.
January 8th, 2010 at 5:40 pmHow’s your head Curt…must hurt from banging it against the brick walls here….but I give you an A for effort…silly on your part, but a grand try nonetheless.
January 8th, 2010 at 5:46 pmDi Marco wrote:
“We oppose men in women’s restrooms and vice versa because they do not qualify for it. Like a nut and bolt, like a plug and socket, there is no separate but equal, there is no discrimination, there is only qualifications. Same sex people do not qualify to be married because they are not complementary beings.”
TYhe only qualification necessary to use a restroom is the need to pee. Both men and women are fully equipped for that. I assure you that men are fully equipped to pee in a women’s restroom and women are fully equipped to pee in a men’s bathroom. The issue is whether it is proper to separate the sexes.
I say that there is no legal violation by such separation of the sexes by government because it provides separate but equal facilities.
January 8th, 2010 at 6:52 pmambrosiajr,
Its not so bad. I’ve watched enough reruns of All in the Family to know what I’m dealing with.
But I gave up on trying a long time ago.
January 8th, 2010 at 7:30 pmYou’re right Curt…best to have some fun…I found that out a while ago too.
January 8th, 2010 at 8:22 pmSmashing your fingers with a hammer is a gas too!
January 8th, 2010 at 8:39 pm“I’ve watched enough reruns of All in the Family to know what I’m dealing with.”
I like the episode where “Meathead” is carrying a sidebag and Archie’s friend asks if he’s a “fruit”.
January 8th, 2010 at 9:19 pm“Smashing your fingers with a hammer is a gas too!”
I wonder what these clowns will do with themselves when the Court resolves this issue in favor of ME once and for all.
January 8th, 2010 at 9:25 pmCurt,
Re: #35,
They know that there is a purpose for marriage. They know that they cannot fulfill that purpose. That is why they do not get married. Shouldn’t they enjoy all that is provided to homosexuals?
January 8th, 2010 at 10:47 pmDiMarco,
“They know that there is a purpose for marriage. They know that they cannot fulfill that purpose. That is why they do not get married. Shouldn’t they enjoy all that is provided to homosexuals?”
And what purpose is that, specifically?
January 8th, 2010 at 11:04 pmTo procreate and sustain civilization.
January 8th, 2010 at 11:10 pmDi Marco,
That sounds suspiciously like your definition of marriage.
It sounds like this couple, who I have no doubt are completely real people, should be made aware that having children is not a requirement to get married.
January 8th, 2010 at 11:18 pmAnalysts across the state say one thing defeated gay marriage: the election of Chris Christie.
Chris Christie, who in every debate strongly stated his position for traditional marriage, and throughout the campaign never waivered in his vow to oppose its redefinition.
Chris Christie, who made crystal clear to GOP legislators that no Republican should vote for that bill, thus forcing 5 Senators (and who knows how many Assesmly) off of it and depriving the Dems the cover votes they needed.
Chris Christie, who would have lost on Nov. 3rd if we all had listened to Carolee Adams and Michael Illions.
Don’t you get it, Carolee? Chris can’t get good judicial nominees through this Senate. Period.
But he can, in part by reforming the “high profile authorities” you refer to, do what he was elected to do and clean up our fiscal mess. That would restore the ENTIRE GOP BRAND in NJ, allowing us to take back the Senate in 2011 and be able to confirm good judges.
The smartest thing Christie could do with Wallace is reappoint him. His age will force retirement in only 2 years, just in time for a new GOP Senate to confirm his replacement.
But you would rather see Christie nominate Rick Merkt in May, cause a distracting shitstorm of a social issues war just as we are fighting the libs over the first budget, only to be forced to withdraw the nomination in humiliation when the Senate gives Christie the middle finger.
That’s because you have a sick twisted love of being persecuted, Carolee, and you can’t handle actually winning.
January 8th, 2010 at 11:33 pmDi Marco,
This is silly. Just because your friends do not want to avail themselves to all the rights and benefits of marriage does not mean that marriage is not a sufficient institution for them to achieve their remaining objectives. You are advocating a special, a la carte institution just for them – when there is absolutely no legal or financial reason why thjey cannot ewither (a) get married and obtain the rights and benefits Civil Unions offer, or (b) not get married and msake whatever other contractual or voluntary arrangements they wish to make knowing that it is something less than marriage.
There is no reason why heterosexuals need the rights and benefits of Civil Unions. They can obtain those benefits either through marriager or through voluntary arrangements.
Homosexuals need civil unions because they may not avail themselves to the benefits of marriage.
January 8th, 2010 at 11:35 pmCurt,
They do exist and have been in a committed relationship for over a dozen years. For them, marriage is not right. Some senior citizens are also in the same position. Again I ask, shouldn’t they enjoy all that is provided to homosexuals?
If Civil Unions are to exist, they should be permitted for heterosexuals.
January 8th, 2010 at 11:36 pmEd,
We disagree. The Civil Union statute as written discriminates against heterosexuals. It should either be abolished or opened up to heterosexuals. Then we can truly have equality.
January 8th, 2010 at 11:42 pmDiMarco,
“They do exist and have been in a committed relationship for over a dozen years. For them, marriage is not right.”
I don’t get why marriage benefits are ok but marriage definition isn’t? Is the woman a blow up doll or something? I’m not following.
“Some senior citizens are also in the same position.”
No they aren’t. They can get married.
“Again I ask, shouldn’t they enjoy all that is provided to homosexuals?”
Yes, its provided under the marriage laws.
“If Civil Unions are to exist, they should be permitted for heterosexuals.”
Heres a horrible but legitmate question. If the child was to pass away before the parents, by your logic should they stay married?
January 9th, 2010 at 12:03 amDiMarco,
“We disagree. The Civil Union statute as written discriminates against heterosexuals. It should either be abolished or opened up to heterosexuals. Then we can truly have equality.”
I know this is a longshot but were you the dude who sued Hooters because they weren’t hiring male waitresses?
January 9th, 2010 at 12:05 amDi Marco,
You state that the purpose of marriage is “To procreate and sustain civilization.” This is certainly false for virtually everyone (if not everyone), and I suspect it is even false for you.
The reason people get married is to make a public declaration of their final choice of life partner, and to receive certain legal protections that flow from making that firm choice of one’s own family and next of kin.
Often times, that final choice includes the desire to procreate – but not always. This is not an essential feature of a marriage.
And I suspect that not even the most committed collectivist has corrupted his/her soul enough to believe that the reason s/he is getting married is “to sustain civilization.” I cannot imagine that on the day of your wedding, or any day during yourt courtship with your wife, you or your wife even had the thought “civilization needs for us to get married – if we don’t, civilization may not even survive.” Trust me, civilization would have continued even had you chosen to live your lives together without having gotten married.
So to the extent we “disagree” I do not think you are being straightforward about the purpose of marriage – whether as a general proposition or even in your own personal case.
Civil Unions provide homosexuals with a way to make a public declaration and obtain legal recognition of that final choice of life partner. Allowing heterosexuals to enter Civil Unions does nothing but water down Civil Unions and to make them the kind of inferior institution Curt is claiming that they are today. Your friends can either get married or make contractual arrangements to suit their needs without any need for a Civil Union. The only thing allowing them to obtain a Civil Union would do is to transform Civil Unions into an a la carte version of marriage – and that would violate the ruling in Lewis v. Harris and there is no legal need for it, besides.
January 9th, 2010 at 7:05 amEd,
Again, I disagree. I do not believe I would have gotten married if I did not want my wife to be the mother of my children. Financially, we were far better of as two singles living together. My wife even joked to my accountant that if she knew how much marriage would have cost us, she would have stayed single.
Whether you want to admit it or not, in nature, which includes humans, mates are selected based on their ability to produce and provide for offspring.
Your argument regarding “make contractual arrangements to suit their needs without any need for a Civil Union” is very valid. This is why I have always been against the Civil Union law. However, it is to exist, it must be available to everyone.
January 9th, 2010 at 8:13 amCurt,
Re: #52,
No.
Re: #51,
Many people agree with me and see marriage as having a purpose. I know you cannot accept this because it would undermine your entire argument for same sex marriage. When marriage means something, one does not take that lightly. That is why some heterosexual people choose to live together and not marry.
Regarding your last question, I am a believer in the biblical definition of marriage that when a man and a woman marry they become one flesh. Therefore, the death of a child should not cause them to be separated. As it is said, until death do you part.
January 9th, 2010 at 8:29 amDi Marco,
When you got married, did you and your wife promise to love, honor and cherish? Or did you promise to procreate and save civilization?
Why doesn’t a marriage license reqiure proof that you can procreate, and a declaration of your stated intent to do so? Why isn’t there a marriage physician doing physical exams to make sure that marriage applicants are fit for the particular purpose?
Like I said, most people who get married in fact do want to have children. But that does not make procreation the fundamental purpose of marriage – lots of people procreate just fine without it. And lots of people want to make a final choice of life partner without any intention of having offspring.
A fundamental purpose such as you are ascribing cannot be both so underinclusive and overinclusive. By defintion and in logic, such underinclusion and simultaneous overinclusion means that however important a factor procreation is in marriage, it cannot be the fundamental purpose. Particularly given that the purpose I have identified applies to every single marriage.
January 9th, 2010 at 8:38 amDi Marco,
You wrote:
“Whether you want to admit it or not, in nature, which includes humans, mates are selected based on their ability to produce and provide for offspring.”
So explain to me why in nature only human beings get married? Where are all the marriage ceremonies for bunnies, who also like to procreate?
January 9th, 2010 at 8:40 amEd,
Re: #56,
As I told my wife prior to being married, in my mind and heart I was married to her. I did not need a license or ceremony to validate it. We acted and treated each other as if we were married. The reason to make it “official” was mainly because we intended to have and raise a family.
Without the desire to have kids, I would probably be similar to my friend that is in what can be considered a “common law marriage”.
As for your assertion that procreation cannot be the fundamental purpose, I wish to point out again that infertility has long been a justification for ending a marriage. This “rule” has existed for thousands of years and has been codified in law.
I recognize that people get married without the desire to have children. However, from my viewpoint, there really is no reason for them to get married.
Re: #57,
For the same reason bunnies don’t pay taxes…they don’t have the attention span to fill out and file the necessary forms.
January 9th, 2010 at 9:10 am“We acted and treated each other as if we were married. The reason to make it “official” was mainly because we intended to have and raise a family.”
But THE LAW did not treat you as married – with all of the legal rights and benefits associated with marriage. You may well have treated your your girlfriend *as if* she were your wife before you got married, but I assure you that the probate court would not have, nor would any hospital administrator.
As for your flip response to bunnies – it was totally unwarranted. You are the one who confused seeking a mate with seeking a marriage partner, and generalized it to all of nature. Plenty of people seek sexual partners for reasons other than procreation, as the contraceptive industry’s success attests.
January 9th, 2010 at 10:25 amEd,
The many people who seek sexual partners for reasons other than procreation do so for sexual gratification. Sexual gratification is no justification to be married. I think you are confusing the reasons for chosing a mate (long term marriage partner) with sexual desire. Some people have sexual intercourse prior to, and in cases like Tiger Woods, after they are married without any intention or desire of getting married. Unless humans are going to abandon parental responsibilities, they should choose wisely with whom they mate. If all they wish is sexual gratification there is no need to have a mate.
Your first paragraph makes my case why civil unions should either be open to everyone or be abolished entirely.
January 9th, 2010 at 11:29 amDi Marco,
Your friends should just get married and call themselves civil union partners.
I oppose gay marriage in NJ because there is a Civil Unions law that provides all of the legal rights and benefits of marriage for homosexuals – but you are making Curt’s case better than he is. (No disrespect to Curt).
January 9th, 2010 at 11:40 amAlthough you may neither accept nor understand my and my friend’s view, marriage does have a purpose in society…and it isn’t to make the two people involved feel better about themselves.
January 9th, 2010 at 11:51 am“marriage does have a purpose in society…and it isn’t to make the two people involved feel better about themselves.”
Right – it’s to allow each individual to make a final life choice of life partner and replace the next of kin with which s/he was born with the person of one’s own choosing. I never said it was about making anyone feel better about themselves – I have been very clear about what I believe the purpose of marriage to be and the faults I have with your proffered purpose.
I understand why you cannot contradict what I have said, because the purpose I have identified applies to every single marriage without exception. But that does not justify creating a straw man of statements I never said and then proceed to knock it down.
January 9th, 2010 at 12:07 pmEd,
I agree that is one of the outcomes when people get married. However, it is not why marriage exists.
January 9th, 2010 at 12:24 pmAnd by the way, it is you and your friends who are saying the marriage/civil union laws must make them feel better. Your friends can obtain all of the legal rights and benefits of civil unions simply by getting married. However, that title apparently is insufficient for them – so you are saying that we need to modify the law to accomodate those feelings.
Marriage and civil unions are about giving legal effect to certain rights that every individual has. The fact that they are separate but equal institutions does not mean that they discriminate against gays – or against heterosexuals.
January 9th, 2010 at 12:30 pm