The conservative case to recognize same-sex marriages

[Lord Zentei]

Just a quick post of an article demonstrating that the "states rights" crowd does not exclusively swing one way, if you'll pardon the expression:

(CNN) -- I am married to my same-sex spouse (and partner of 15 years) under the laws of the District of Columbia. We enjoy the same status as our straight married neighbors. Well, not exactly.

Despite being legally married, we are prevented by the federal Defense of Marriage Act (DOMA) from filing joint federal tax returns and denied the right to Social Security survivor benefits, among many other federal legal rights available to opposite-sex married couples. We are as equally married as our straight counterparts but lack equal rights when it comes to the benefits of marriage.

DOMA has the same rights-limiting effect on same-sex married couples in each of the jurisdictions where same-sex marriage is legal: D.C. and six states -- Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and New York. Same-sex marriage is set to be legal in Washington state next week and in Maryland in January.

Last week, the U.S. Court of Appeals for the First Circuit, sitting in Boston, ruled that DOMA's denial to same-sex couples of federal benefits enjoyed by straight couples in Massachusetts is unconstitutional. The court said that there was "a lack of any demonstrated connection between DOMA's treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage."

"Moral disapproval" cannot by itself form the grounds for discriminatory legislation, said the court.

Notably, the court did not declare any constitutional right to same-sex marriage, and it did not adopt the argument made by the plaintiffs that DOMA was motivated purely by bias against gay people. Rather, the court looked at the case narrowly as one involving a state where same-sex marriage is legal and a federal law limiting the rights available to a certain category of couples married under state law.

After a searching review of the purpose of the law and the legislative history, the court found DOMA constituted a federal intrusion into an area traditionally handled by state law -- the issue of marriage and the rights flowing from it.

And the court concluded there obviously was a disparate impact on a minority group, same-sex couples. As the court's opinion explained, "rather than challenging the right of states to define marriage as they see fit, [the case is about] the right of Congress to undercut the choices made by same-sex couples and by individual states in deciding who can be married to whom."

In other words, the case was about whether Congress has any business limiting the legal effect of same-sex marriages as a matter of federalism once a state determines such marriages are to be permitted.

The court said that "one virtue of federalism is that it permits this diversity of governance based on local choice," a principle that "applies as well to the states that have chosen to legalize same-sex marriage" as to those that have prohibited it.

This is where the court avoided ruling on whether same-sex marriage is constitutionally required under equal protection in states banning it, or whether other states need to recognize same-sex marriages performed elsewhere.

Focusing on the federalism issue, the court found that Congress had not established a legitimate reason for interfering with the state of Massachusetts' regulation of marriage. And it concluded there was no justifiable relationship between the "defense" of straight marriage and denying the benefits of marriage available to people of the same sex legally married under state law.

So while this case ends up being a victory for the rights of same-sex married couples in Massachusetts (although the ruling immediately was put on hold pending Supreme Court review), its legal reasoning was decidedly conservative, based on a state's rights.

The author of the opinion, Judge Michael Boudin, also is known as a conservative. He is a former official in President Ronald Reagan's Justice Department and was appointed to the bench by President George H.W. Bush. Another judge on the three-judge panel deciding the case was appointed by Reagan. In writing the opinion for the court, Boudin said: "Invalidating a federal statute is an unwelcome responsibility for federal judges," a reflection of his and his fellow judges' judicial conservatism.

Indeed, far from a case of judicial activism, this recent gay marriage case is one built on a foundation even the Federalist Society would admire and written by a judge whose background they would approve.

Thus, the oft-heard claim from social conservatives that same-sex marriage and the legal rulings upholding it are the products of left-wing activist judges is belied by the most recent judicial ruling on the subject, from a majority comprised of conservative judges and with reasoning conservatives frequently invoke to support state rights and to resist the impact of federal laws.

Epilogue: Also in Boston this month, the Profile in Courage Award was given by the John F. Kennedy Library to three former justices of the Iowa Supreme Court who were part of the unanimous court establishing same-sex marriage in Iowa as a constitutional right under state law, and who were removed from office after a $1 million campaign against them by conservatives. The Boston judges behind this week's ruling enjoy life tenure under Article III of the Constitution and will not be subjected to such vilification.

[Dalton]

You know, one of the attorneys behind the Prop 8 appeal is Ted Olson, a noted conservative. Being against same-sex marriage is less about true conservatism and more about religion (surprise).

[amigocabal]

For balance, I present The Liberal Case Against Gay Marriage.

A suitable account of marriage might begin as follows:
Most human societies have honored the notion that special
responsibility for children lies with the biological
parents. This has also been the view of almost all influential
thinkers on the subject--including "liberal" ones. No
known society treats the question of who may properly
call a child his or her own as simply "up for grabs" or as a matter to be decided entirely politically as one might
distribute land or wealth.

But marriage is not merely a matter of biology. That
children can be "illegitimate" suggests that the biological
facts of parenthood are not enough for social purposes.
Disputes over fatherhood, for example, or variations in
parental attachment to their children, make it reasonable
for societies to supplement and sometimes override the
natural bonds established by and through the processes of human generation. Marriage is, before all else, the practice
by which human societies mark, modify, and occasionally
mask these bonds. Like death, and the funereal rites that
universally accompany it in one form or another, human
generation has a significance that is more than arbitrary, if
less than obvious. Marriage is the primary way societies
interpret that significance, and it is doubtful whether any
other custom could substitute for it adequately.

A similar constraint applies to death. A society could
abolish "funerals" as heretofore understood and simply
call them "parties," or allow individuals to define them as
they wish. Were the "liberationist" exaltation of individual
choice pushed to its logical conclusion, would not a public
definition of "funeral" as a rite in honor of the dead
appear just as invidious as a public definition of "marriage"
as an enduring sexual partnership between a man
and woman? If it is discriminatory to deny gay couples
the right to "marry," is it not equally unfair to deny
living individuals the right to attend their own "funerals"?
If it makes individuals happy, some would reply, what is
the harm? Only that a society without the means of formally
acknowledging, through marriage, the fact of generation,
like one without the means of formally acknowledging,
through funeral rites, the fact of death, seems
impoverished in the most basic of human terms.
Like generation, death has a "public face" so

And, of course, we have liberals like Sen. Ruben Diaz (D-Bronx) and the late Sen. Paul Wellstone (D-MN)

Hope this helps.

[Losonti Tokash]

That is one of the most bizarre, tortured comparisons I have ever seen, and also appears to completely ignorant of the concept of a live wake.

[eion]

Diaz is a religious wacko who has compared abortion to the holocaust, which further proves Dalton's contention that opposition to marriage equality is a matter of religious, not political, ideology.

And Wellstone is a piss-poor example considering he died in 1996, when everyone outside the gay community was against gay marriage including President Clinton. Were he alive to day, I am confident he would be one of those who greatly regret their vote for the poorly-named Defense of Marriage Act and fight to have it repealed.

[Pint0 Xtreme]

Diaz is a religious wacko who has compared abortion to the holocaust, which further proves Dalton's contention that opposition to marriage equality is a matter of religious, not political, ideology.

Let me add to that: the opposition to marriage equality is a matter of religious and prejudiced ideology. A lot of these people are both religious wackos and homophobic fucks. On the flip side, there are more individuals today than several years ago that feel that their religious beliefs are compatible with same-sex marriages. In the end of the day, even the "best" arguments of marriage equality are so straw-grasping, they can barely hide their thin-veiled smokescreen for homophobia.

And Wellstone is a piss-poor example considering he died in 1996, when everyone outside the gay community was against gay marriage including President Clinton. Were he alive to day, I am confident he would be one of those who greatly regret their vote for the poorly-named Defense of Marriage Act and fight to have it repealed.

Bill Clinton has already formally stated that he's supportive of marriage equality. He holds the position that DOMA was his way of preventing a broader anti-gay constitutional amendment (which the Republicans attempted to enact in 2003).

[amigocabal]

Diaz is a religious wacko who has compared abortion to the holocaust, which further proves Dalton's contention that opposition to marriage equality is a matter of religious, not political, ideology.

And Wellstone is a piss-poor example considering he died in 1996, when everyone outside the gay community was against gay marriage including President Clinton. Were he alive to day, I am confident he would be one of those who greatly regret their vote for the poorly-named Defense of Marriage Act and fight to have it repealed.

Well, one could argue that the circumstances that existed in 1996 justified the Defense of Marriage Act, but circumstances today do not. Not everyone agrees with this (including some who oppose the Defense of Marriage Act), but it is a reasonable argument.

[amigocabal]

You know, one of the attorneys behind the Prop 8 appeal is Ted Olson, a noted conservative. Being against same-sex marriage is less about true conservatism and more about religion (surprise).

Dick Cheney also supports same-sex marriage.

[Simon_Jester]

Well, one could argue that the circumstances that existed in 1996 justified the Defense of Marriage Act, but circumstances today do not. Not everyone agrees with this (including some who oppose the Defense of Marriage Act), but it is a reasonable argument.

What circumstances justified it then?

[Todeswind]

Being conservative and being competent are not mutually exclusive.

[eion]

Being conservative and being competent are not mutually exclusive.

Being a homophobe and being rational are though. And rationality is a pretty important component to competence.

[Simon_Jester]

Being conservative and being competent are not mutually exclusive.

I'm still wondering what amigocabal thinks those reasons are. Aside from "a lot more people thought it was wrong then," which is recursive- if everyone made their decision based on what everyone else thinks, no one would ever change their mind because we'd all be waiting for someone else to do it first.

[amigocabal]

Being conservative and being competent are not mutually exclusive.

I'm still wondering what amigocabal thinks those reasons are. Aside from "a lot more people thought it was wrong then," which is recursive- if everyone made their decision based on what everyone else thinks, no one would ever change their mind because we'd all be waiting for someone else to do it first.

Many of the reasons were summarized in the legislative summary of DOMA. It quoted the U.S. Supreme Court, which spoke of the "union for life of one man and one woman in the holy estate of matrimony." Murphy v. Ramsey, 114 U.S. 15 at 45 (1885) It also quoted the 1990 edition of Black's Law Dictionary.

Of course, if one were to argue that marriage should not be redefined because it has long been understood to be a legal union of a man and a woman as husband and wife, and a spouse to be a husband or wife of the opposite sex, one must measure the historic reasons why people thought that was what marriage was, in order to be able to argue whether these reasons are still valid today. Indeed, our eminent legal, philosophical, and moral authorities like Sir William Blackstone and John Locke had described marriage like this in their writings. I would guess that people then believed that there was something special about the male-female dynamic, a dynamic they believed absent from, say, a pair of brothers or trio of sisters. And it was for this reason that a unique word was needed to describe this.

I am married to my same-sex spouse (and partner of 15 years) under the laws of the District of Columbia. We enjoy the same status as our straight married neighbors. Well, not exactly....
After a searching review of the purpose of the law and the legislative history, the court found DOMA constituted a federal intrusion into an area traditionally handled by state law -- the issue of marriage and the rights flowing from it.

The First Circuit struck down this application of DOMA because of the federal intrusion into state law. However, the District of Columbia is not a state, and Congress exercises plenary police power over the District. As I noted in my other post, the First Circuit plainly held that DOMA passes rational basis scrutiny. See slip op. at 14 ("nder such a rational basis standard, the Gill plaintiffs
cannot prevail.") But federalism concerns demanded a more intensified level of scrutiny. id. at 11. These concerns would be absent in applying DOMA to D.C..

[amigocabal]

Indeed, our eminent legal, philosophical, and moral authorities like Sir William Blackstone and John Locke had described marriage like this in their writings.

I should add that John Locke gave his reason for his understanding of the nature of marriage in his Second Treatise of Civil Government, Sec. 79.

(I do not address, at this time, whether that reason was sufficient then, or sufficient now.)

[Simon_Jester]

Many of the reasons were summarized in the legislative summary of DOMA. It quoted the U.S. Supreme Court, which spoke of the "union for life of one man and one woman in the holy estate of matrimony." Murphy v. Ramsey, 114 U.S. 15 at 45 (1885) It also quoted the 1990 edition of Black's Law Dictionary.

Of course, if one were to argue that marriage should not be redefined because it has long been understood to be a legal union of a man and a woman as husband and wife, and a spouse to be a husband or wife of the opposite sex, one must measure the historic reasons why people thought that was what marriage was, in order to be able to argue whether these reasons are still valid today.

In my opinion, you are much too fixated on this "This is the definition of marriage! We are REDEFINING! Everything will be different!" notion.

Is it redefining marriage when the state raises the age of consent, or permits no-fault divorces for couples that turn out to be incompatible? The latter has done far more to change the nature of marriage in the US than any effect gay marriage will have on the roughly 90-95% of people who have no interest in gay marriage.

Indeed, our eminent legal, philosophical, and moral authorities like Sir William Blackstone and John Locke had described marriage like this in their writings.

They have also been dead for two hundred years. Locke in particular (I am not familiar with Blackstone) had all sorts of blatantly silly things in his writing- stuff he came up with that seemed brilliant in the 18th century but doesn't make a lick of sense in light of what we know now.

I can acknowledge someone as a philosopher, who advanced our awareness of justice and political thought, without assuming they have to be an "eminent legal, philosophical, and moral authority" I am now obliged to follow to the letter.

I would guess that people then believed that there was something special about the male-female dynamic, a dynamic they believed absent from, say, a pair of brothers or trio of sisters. And it was for this reason that a unique word was needed to describe this.

That wouldn't very well change in fifteen years, now would it?

See, what you're missing is that the entire pro- position on this issue comes from people saying "it is an injustice that when a homosexual couple loves each other and wants to settle down together for the rest of their lives, the state refuses to recognize that as marriage. Churches and private citizens can say or think whatever the hell they want, but the state is obliged to provide equal protection and recognition to all of its citizens, so long as they aren't doing anything wrong."

It has nothing to do with "we want to redefine marriage." Marriage means what it always did- a long-lasting, legally recognized pair-bond. The only reason anyone now wishes "between a man and a woman" is because they are now in a position where you can't just refuse to admit that gays exist, like you would have done thirty or forty years ago.

The First Circuit struck down this application of DOMA because of the federal intrusion into state law. However, the District of Columbia is not a state, and Congress exercises plenary police power over the District. As I noted in my other post, the First Circuit plainly held that DOMA passes rational basis scrutiny. See slip op. at 14 ("nder such a rational basis standard, the Gill plaintiffs
cannot prevail.") But federalism concerns demanded a more intensified level of scrutiny. id. at 11. These concerns would be absent in applying DOMA to D.C..

DC still has local marriage laws. If the federal government wants to change the law in DC, it should direct that those laws be changed, in a straightforward and up-front fashion. Not pass unconstitutional laws that violate several clauses at once.

[General Zod]

Being conservative and being competent are not mutually exclusive.

I'm still wondering what amigocabal thinks those reasons are. Aside from "a lot more people thought it was wrong then," which is recursive- if everyone made their decision based on what everyone else thinks, no one would ever change their mind because we'd all be waiting for someone else to do it first.

Many of the reasons were summarized in the legislative summary of DOMA. It quoted the U.S. Supreme Court, which spoke of the "union for life of one man and one woman in the holy estate of matrimony." Murphy v. Ramsey, 114 U.S. 15 at 45 (1885) It also quoted the 1990 edition of Black's Law Dictionary.

Of course, if one were to argue that marriage should not be redefined because it has long been understood to be a legal union of a man and a woman as husband and wife, and a spouse to be a husband or wife of the opposite sex, one must measure the historic reasons why people thought that was what marriage was, in order to be able to argue whether these reasons are still valid today. Indeed, our eminent legal, philosophical, and moral authorities like Sir William Blackstone and John Locke had described marriage like this in their writings. I would guess that people then believed that there was something special about the male-female dynamic, a dynamic they believed absent from, say, a pair of brothers or trio of sisters. And it was for this reason that a unique word was needed to describe this.

Used to be that polygamy was totally fine back in the day across multiple cultures. So you can't really argue that marriage has only ever had one definition.

[eion]

Used to be that polygamy was totally fine back in the day across multiple cultures. So you can't really argue that marriage has only ever had one definition.

Not to mention that the bible contains what is arguably a marriage between two men, and people have argued since the 16th century that Jesus had a boyfriend.

[Pint0 Xtreme]

In the time (2009 - 2010) I canvassed door to door with voters on this issue, I don't remember a single person I spoke to that staked their position entirely on the definition argument. Surely they'll bring it up as their argument for denying marriage equality, but when asked to extrapolate, they basically would tell me their real personal reasons for that adhering to that argument, whether it be religious, prejudiced or ignorant reasons (The religious response was the most common). Arguing about the definition of marriage is and always has been a superficial statement superimposed on the real arguments underneath.

[amigocabal]

See, what you're missing is that the entire pro- position on this issue comes from people saying "it is an injustice that when a homosexual couple loves each other and wants to settle down together for the rest of their lives, the state refuses to recognize that as marriage.

That is not true. Many people on the pro side argue that, but not all. Dick Cheney argued that it should be decided on a state by state basis So does Andrew Cuomo. So does Barack Obama.

It is one thing to argue that present-day circumstances warrant redefining marriage. It is a whole other thing to argue that defining marriage as a "union for life of one man and one woman in the holy estate of matrimony" is always unjust.

(Obama argues that the Defense of Marriage Act, to the extent it denies same-sex couples benefits, violates equal protection. But the issue of the definition of marriage is separate from the issue of what benefits, if any, should be reserved to married couples while denied to same-sex couples. As the Alaska Supreme Court pointed out, that the government may define marriage as an exclusive union of one man and one woman "does not automatically permit the government to treat [married couples and same-sex couples] differently in other ways." Alaska Civil Liberties Union v. Alaska, 122 P.3d 781 at 786-787 (Ak. Sup. Ct. 2005))

[Simon_Jester]

That is not true. Many people on the pro side argue that, but not all. Dick Cheney argued that it should be decided on a state by state basis So does Andrew Cuomo. So does Barack Obama.

Your argument makes no sense to me. I do not understand. It is as if you said some total non sequitur, such as "I enjoy pasta, therefore your house is made of bricks."

Either I, personally, believe gay marriages should be legal, or that they should not be legal. Saying "it's up to the states" is irrelevant. All that means is that I think the constitution of the United States shouldn't be amended over this. Either way, I, personally either think gay marriages should be legal (because not allowing them is injustice), or that they should not be legal (for whatever reason).

I cannot imagine a person who thinks gay marriage should be legal because "hey, we're changing a definition!" This fixation on "definition," as if there is a magic dictionary built into your skull that tells you what everything is, and is never wrong, even though no one can point to it and no one can explain why I should care what it says... that's all on you. That exists only in you. It does not exist in me. I don't care what you think the definition of marriage "is." I care what the definition of marriage ought to be.

It is one thing to argue that present-day circumstances warrant redefining marriage. It is a whole other thing to argue that defining marriage as a "union for life of one man and one woman in the holy estate of matrimony" is always unjust.

If a thing is unjust, logically it remains unjust throughout time. It cannot be right to beat someone up one day, and wrong the next.

Moreover, this definition you pull out of a hat is not in any way universal. At various times, perfectly functional cultures have defined marriages that were in no real sense a union (the spouses living apart). There have been marriages that were not for life, that contained more than one man, that contained more than one woman, and which were in no sense "holy" because no religious intervention was required.

In other words, every word in your definition is wrong, except the last few. When we take out the nonsense, we're left with "marriage is the estate of matrimony," which is a circular definition. Thus, this linchpin of your argument appears to me like a shadow, a thing with no content or substance, an intangible ghost.

I do not understand how your position proceeds, when it is built upon shadows.

[Zwinmar]

One thing that always gets me is that the individual States seem to try to retain one of the issues that the American Civil War was fought over. It came out as: Federal Government trumps the State government every time. Which is something I try to explain to certain stoners that I know. Just because the Feds do not act right away does not mean that they are not going to.

IMO: If two people want to get married, I do not see the problem; male-female, male-male, female-female, what difference does it make? Taxes wise it is still two people getting married so why all the hullaballoo? Oh yeah, the province or religion, sorry.

[Simon_Jester]

No one except the losers in the Civil War claimed the war was fought over the existence of states' rights. What they were fighting over was the extent of those rights. Note that the US government during the war didn't a right to control details of state affairs, except insofar as they needed it to fight the war in the first place.

So yes, there are quite a lot of areas where the federal government doesn't really have ground to stand on when it tries to dictate terms to the states. Is this better than a system of total central federal control, with the states as nothing but administrative districts? I don't know- but that question wasn't really at stake in the Civil War; secession and slavery were.

[General Zod]

One thing that always gets me is that the individual States seem to try to retain one of the issues that the American Civil War was fought over. It came out as: Federal Government trumps the State government every time. Which is something I try to explain to certain stoners that I know. Just because the Feds do not act right away does not mean that they are not going to.

IMO: If two people want to get married, I do not see the problem; male-female, male-male, female-female, what difference does it make? Taxes wise it is still two people getting married so why all the hullaballoo? Oh yeah, the province or religion, sorry.

The feds trump the state in areas that are explicitly outlined, but there's a lot of clauses and catches like the commerce act that gives them lots of leeway.