Replies

Uh...anyone else want to jump in here?

I'm not going to argue ACLU with you. Example cases can be brought up on both sides and the details of each can be picked apart for ever.

What I keep trying to come back to is that in the current state of things, injustice was being done. Discrimination was occuring. The civil codes were saying "You married people are entitled to this, this and this. And you gay people aren't. And the courts found no valid reason for the discrimination.

You never really address this. You ask why they (gay couples) should be treated equally when they are not. But never address why they are are not. The best you seem to come up with is "because they always were." I don't find the good enough and neither did the court.

"Why are you hellbent on changing things anyway?"

I am always interested in changing that which I see is unjust and unfair. I believe that denying commited gays couples the rights and priviledges of married couples is just that.

Why are you so hell bent on insuring a civil law distiction between gay and married couples when you or no one else can give me a concrete example of how eliminating the distinction will harm anyone or anything?

Why are you more "ecstatic" to see marriage redefined but care not a whit when the Rule of Law and the separation of powers and democratic right is undermined?

Because I don't accept the premis that separation of powers and democratic rights are undermined. And as I said, the indefensable ruling of Bush vs Gore is far more flagrent example of judicial overreach.

An I don't agree that what I said was a distortion of the court record. They could have ruled that the plaintifs were entitled to marriage licenses. It was in there power to do so. I'm glad they didn't. I'm glad they gave it to the legislature 180 days to deal with this.

You talk about the judges imposing "their" values. I hear this every time a court rules in favor of a gay side in a case. I find it more likly that they found the current standard to be unfair.

But we are dealing with gays here. And a lot of people have problems treating gays fairly.

You never really answered, but I assume the the civil union idea doesn't work for you.

Again, anyone else want to keep this from being the Typesbad-WOSG show? We both seem to be stuck making the same points over and over again.

"I'm not going to argue ACLU with you."

I understand, you dont want to discuss the big issues, you'd rather focus on trivia.

"What I keep trying to come back to is that in the current state of things, injustice was being done."

So you say, I say you are wrong and that the privileges of civil marriage were accorded fairly and justly already as marriage is between a man and a woman. Now I can indeed give you reasons wrt the harm done to children through this process of debasing marriage, but you've bought into the media myth well-stage-crafted by the liberal elite culture that there is no harm in ignoring sexual morality when defining families and that those who believe in such morality are 'bigots'.

We can disagree civilly about it and handle it, as it should be, in the legislature and democratic process. Fine. But you seem to believe that not only are you in the right - but the end justifies the means! WHY? Why do you blithely dismiss the REAL DANGER TO OUR FREEDOMS FROM JUDICIAL TYRANNY?

From The Wall Street Journal:

Antonin Scalia was right after all. And we don't mean his prediction that the Supreme Court's Lawrence decision this year throwing out a Texas sodomy law would quickly become a vehicle for gay marriage -- which came true this week courtesy of a Massachusetts Supreme Court decision.

We mean Justice Scalia's far more prophetic dissent a few years back in Planned Parenthood v. Casey. Though that case involved abortion, Mr. Scalia's larger point was about the culture wars that were unleashed on the body politic the last time our judiciary presumed to "settle" a contentious social issue that properly rests with the people's elected representatives.

"By foreclosing all democratic outlet for the deep passions this issue arouses," he wrote, "by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish." That is one legacy of Roe v. Wade.

We were reminded of this by Massachusetts Chief Justice Margaret Marshall's 4-3 majority opinion this week defining marriage as an "evolving paradigm" and declaring there exists no "constitutionally adequate reason for denying civil marriage to same-sex couples." Can anyone doubt that the Massachusetts High Court has started another Thirty Years War?

So let's be clear. Notwithstanding headlines trumpeting that Massachusetts has just opted for gay marriage, the people of that commonwealth did no such thing. It is four liberal judges on the Massachusetts Supreme Court who, egged on by well-connected and politically powerful gay rights activists, have imposed their own moral values on the rest of its citizens.

This is no coincidence. Despite Justice Marshall's solemn talk about an "evolving paradigm," most gay rights champions don't believe Americans have evolved that much. And they know they'd have an almost impossible time getting this new "paradigm" past most state legislatures. In other words, it's precisely the American public whom they most fear and whose voice they want to keep out of this process.

So they've done what liberals so often do: Provoke some state court decisions in hopes that the U.S. Supreme Court will finally do the legislating for them. This sure beats having to persuade your fellow Americans through democratic debate. Did we mention that Justice Marshall's very first legal citation, in the second paragraph of her decision, is Lawrence?

The tragedy here is that the first casualty of an all-or-nothing court clash over "rights" is any kind of reasoned debate or workable social consensus. American attitudes toward homosexuality are plainly changing, and many companies, including the one we work for, already extend full benefits to same-sex partners. We believe that this signals most Americans are at least open to persuasion about increasing the rights of gay Americans, including but not limited to marriage.

But what the Massachusetts High Court gave America in Goodridge v. Dept. of Public Health is not an argument, much less an open debate. It is instead a unilateral declaration that the assumptions and values that have defined one of civilization's oldest and most vital institutions -- marriage -- should be tossed out the window. And if you don't agree they're going to force it on you anyway.

Millions of Americans who have other views are not going to accept this moral diktat, and so once again our politics will be polarized by the cultural furies. When the fighting starts, let's all be clear about who fired the first shot.

"You talk about the judges imposing "their" values. I hear this every time a court rules in favor of a gay side in a case. I find it more likly that they found the current standard to be unfair."

Yes, they imposed their values. This is not what courts should do. They should rule on what the law is.

You seem blase because they created a result you like. But how far are you willing to go with this:

1. Slippery slope arguments hold in these cases - tangential acceptance of one behavior is used to justify normalization of something far broader. Its fatuous legal reasoning, but it exists.
2. The slippery slope includes polygamy, incest and other forms of "adults marrying whomever they choose".

In other words, would you be as carefree about this if the court *imposed* polygamy, group marriages, and incestual marriages on your state? The slippery slope does indeed live, see:

http://volokh.com/2003_11_16_volokh_archive.html#106920841936722666

Eugene Volokh, 2:07 PM]
More "they said it would be like this": An editorial in the Boston Globe, Oct. 15, 1989, at A30, said "[A proposed antidiscrimination barring sexual orientation discrimination in credit, employment, insurance, public accommodation and housing] does not legalize 'gay marriage' or confer any right on homosexual, lesbian or unmarried heterosexual couples to 'domestic benefits.' Nor does passage of the bill put Massachusetts on a 'slippery slope' toward such rights." (See also Phil Pitchford, Council Members Wary of Partner Registry, Riverside Press-Enterprise, Apr. 30, 1994, at B1, quoting Riverside Human Relations Commission member Kay Smith as isaying that "[t]hose that truly have a problem with homosexuality will see [a domestic partnership proposal] as part of the 'slippery slope' [toward gay marriages] . . . . But, this legislation needs to be looked at on the face value of what it is, and it really does very little."; Editorial, A Vote Against Hate, Louisville Courier-J., Feb. 3, 1994, at 6A (rejecting as "arrant nonsense" the claim that a hate crime law "would lead to acceptance of gay marriages"),

From Goodridge v. Dep't of Public Health, the Massachusetts Supreme Judicial Court case finding a constitutional right to homosexual marriage:

Several amici suggest that prohibiting marriage by same-sex couples reflects community consensus that homosexual conduct is immoral. Yet Massachusetts has a strong affirmative policy of preventing discrimination on the basis of sexual orientation. See G.L. c. 151B (employment, housing, credit, services); G.L. c. 265, § 39 (hate crimes); G.L. c. 272, § 98 (public accommodation); G.L. c. 76, § 5 (public education). See also, e.g., Commonwealth v. Balthazar, 366 Mass. 298 (1974) (decriminalization of private consensual adult conduct); Doe v. Doe, 16 Mass.App.Ct. 499, 503 (1983) (custody to homosexual parent not per se prohibited).

So the Massachusetts Supreme Judicial Court's decision allowing homosexual marriage partly relied on the passage of that very antidiscrimination statute. Unless the court's argument was just makeweight (possible, but the court must have at least thought that the point would be persuasive to some readers, or else it wouldn't have included it), passage of the employment discrimination bill did take another step down the slope towards homosexual marriage, in the sense that it did make homosexual marriage more plausible. The very same thing happened in the Vermont Baker v. State civil union decision (see pp. 1083-86 of my Mechanisms of the Slippery Slope).

Again, this doesn't dispose of the merits of antidiscrimination laws, or of gay marriage. Perhaps it was good that the antidiscrimination law helped bring about gay marriage. But this is a reminder not to pooh-pooh slippery slope arguments. In a legal system built on analogy and precedent, where past decisions (even legislative decisions) are used as inputs to future decisions, the slippery slope can be a very real phenomenon -- which is to say that a proposed new legal rule may end up having indirect effects far beyond its own narrow scope.

FURTHER NOTE: More evidence of this tendency (whether good or bad) of past pro-homosexual-rights decisions to lead to homosexual marriage: The court rejects the argument that marriage can be straight-only because it's largely aimed at helping children -- "Moreover, the Commonwealth affirmatively facilitates bringing children into a family regardless of . . . whether the parent or her partner is heterosexual, homosexual, or bisexual." So letting homosexuals adopt (a policy that I think is generally quite laudable) has indeed led to legitimatizing homosexual marriage, another example of slippery slope effects.

Polygamous and incestuous marriages: By the way, concerns that the Massachusetts homosexual marriage decision may lead to legalization of adult incestuous marriages and even polygamous marriages seem to me quite plausible. The court says that the parties "do not attack the binary nature of marriage" or "the consanguinity provisions." (See also footnote 34, "Nothing in our opinion today should be construed as relaxing or abrogating the consanguinity or polygamous prohibitions of our marriage laws.") But the court's reasoning seems to apply equally to those, too.

The court reasons that "the right to marry means little if it does not include the right to marry the person of one's choice," but while it qualifies this as "subject to appropriate government restrictions in the interests of public health, safety, and welfare," it's far from clear that a court would find that "health, safety, and welfare" would be hurt by adult polygamous marriages (assuming all existing partners in the marriage consent to the addition of another). Likewise for adult brother-sister marriages; as I mentioned several months ago, I think the genetic harm argument doesn't really work here -- after all, we don't generally ban marriages between people who have serious genetic diseases, even if the odds of a defect in their children are much higher than for brother-sister marriages.

Similarly, the court rejects the government's "foster the best environment for raising children" argument by saying that "It cannot be rational under our laws, and indeed it is not permitted, to penalize children by depriving them of State benefits because the State disapproves of their parents' sexual orientation." Seems to apply equally to children of polygamous marriages or of incestuous marriages. In fact, why isn't the desire to have multiple committed lifelong partners, or to have a relationship with one's sibling itself a "sexual orientation"?

I doubt the court would uphold a constitutional right to polygamous or incestuous marriages within the next year or two. But over time, if, for instance, a polygamists' rights movement arises -- not implausible, given that some religions practice polygamy -- a court might well do this, citing the Massachusetts decision as an eminently logically applicable precedent.

Some might think this wouldn't be very bad; and some might think that, even if it would be bad, it involves a modest probability of only a small harm, and having a constitutional right to homosexual marriage is right enough to justify that risk of a wrong consequence. But I don't think one can ridicule arguments that a constitutional right to homosexual marriage may lead to rights to polygamous or incestuous marriage. Given the text of the Massachusetts decision, the arguments seem eminently plausible.