It may come to that – the state getting out of the “marriage” business altogether. But I would still have questions about what interest the state has in two members of the same sex pairing off.

Of two things I’m reasonably certain: (1) the state’s interest, if any, is quite independent of erotic activity and, therefore, (2) it is perverse to refer to it as “gay” marriage.”

Marriage is a sacrament of the Church, and just as we don’t ask secular authority to seal and authenticate Baptism, Orders, or other sacraments, it escapes me why we ask the state to administer something called “marriage.”

A story: When I was growing up, my father, a Baptist minister, would conclude his wedding services with these words, “And now, through the authority vested in me by the State of Rhode Island, I pronounce you man and wife.” It always struck me as exceedingly odd that at the penultimate moment of the wedding liturgy he would invoke the authority of the state to announce and thereby authenticate the new union. I understood much later that he was speaking from a tradition in which the state had become the arbiter of such things. But that’s not the catholic tradition (small ‘c’ intended), which brings us to our present squabbles over “marriage.”

I believe the state should get out of the marriage business altogether. Then it would be free to preside over a system of civil union contracts in which any two people could exchange rights and responsibilities, much as any two people can already do in other precincts of civil society, such as business, medicine, and education. Under this arrangement, the young Catholic couple who had just been genuinely “married” through the Sacrament, could separately approach the civil authorities and swear out a contract to specify their respective civil rights and responsibilities, one to the other. Similarly, if any other two people desired to do the same, they would be so empowered, and it would save us all from the specter of the state redefining the historic – and historically sacramental – definition of marriage.

Well Aaron, this is getting interesting. You are obviously sincerely dedicated to the position you’ve advocated, and you are making a real effort to justify it with a reasoned analysis. I think you’re wrong, but I’ve devoted a lot of attention here, at Crunchy Cons, and recently at Alexandria on Word Press, to suggesting that we all need to talk to each other, because we need to arrive at a workable solution we can all live with, unless either side is prepared to exterminate the other in order to prevail without compromise. The latter would suspend all notions of any kind of republic until the dust settles, and the net results might be thought hardly worth the price.

I did not mean to imply that you twisted Goodrich to support your position. The majority position in Goodrich is four square in support of your preferences. I said you were under some misapprehensions. One, obviously, is that I must never have read Goodrich, because if I had, I would have accepted your position. I had in fact read Goodrich. Likewise, you implied that marriage used to be a purely religious function before “civil marriage” was invented to serve the jurisprudence of a secular republic. On the contrary, I pointed out that marriage was purely civil in colonial Massachusetts.

I believe that the majority decision in Goodrich was sloppy, lazy, poorly reasoned, and wrongly decided. I am agnostic on the question of whether legislation should provide for same sex marriage. I believe there are sound biological and theological reasons to assert that human beings were designed for heterosexual marriage. I generally agree with James Watkins’s essay on the subject. I also recognize that theological presumptions cannot control constitutional law or even legislative discretion under the First Amendment. I generally favor some legal framework allowing same-sex partners to grant each other visitation rights, etc., without interference from homophobic relatives. Homosexuality may be a mathematical deviation from the norm for the human species, but it has been with us every generation, and I see no reason to make life difficult for that minority of our fellow citizens.

I am opposed to the shortcut of inventing an “equal protection of the laws” argument. In saying Goodrich was wrongly decided, I am exercising the same right to dissent that Justice Brandeis exercised when he enunciated a constitutional right to privacy, from a minority position — which was accepted by solid majorities some thirty years later. The same recognition that mandatory authority could prove upon reconsideration to be wrong led to the Lawrence decision over-ruling Bowers. That doesn’t mean I can ignore Goodrich. If I were a clerk in Massachusetts, I could not refuse you a marriage license on the ground that the state supreme court was wrong. It IS the law of the land in Massachusetts at present. But if anyone cited Goodrich in a lawsuit in front of my state’s supreme court, I could put together an excellent amicus brief on why the precedent, which is only persuasive at best to any other state’s supreme tribunal, should be disregarded.

Now, why do I argue that equal protection of the laws applies to individuals? The concept began as the United States put itself back together after the Civil War. The original motivating concern was, that certain persons, newly endowed with citizenship, by amendments which rendered the Dred Scott decision null and void, might not be treated equally, that is, on the same basis as, those who were already recognized as citizens. The point was not, Negroes have rights because they are Negroes. The point was, any individual who is deprived of a right which any other citizen would enjoy, on the ground that he is a Negro, shall have that right sustained by the courts. Wisely, the authors of the Fourteenth Amendments drafted broad language which sustained the rights of citizens, generally, not merely those disfavored for one specific reason.

The difference is a subtle one, but it is critical. No individual may be deprived of the right any other individual, similarly situated, would enjoy, on the pretext that he is a member of a disfavored, and therefore protected, class. This is why I have said many times, no marriage law ever said “gay men and women may not marry,” nor said “gay men may only marry gay women.” The Fourteenth Amendment does not ENDOW specific classes of people with special rights.

The Goodrich majority erred by saying that “same-sex couples” had been “barred” from “civil marriage.” Likewise, the media grossly distort the laws of any state by referring to pre-Goodrich statutes as “banning gay marriage.” UNLIKE Jim Crow laws, marriage statutes did not even contemplate the question of whether individuals entering into marriage were gay. It wasn’t even on anyone’s radar screen. Couples do not have a right to marry. Individuals have a right to enter into marriage, since the law provides for such a thing as marriage.

To discuss this further without defining terms begs the question: what is a marriage? You have been openly agnostic on that question, but it must be answered before a court committed to rigorous legal analysis can even consider whether some class of citizens has been barred from marriage. No court considering Loving v. Virginia was in the slightest doubt what the definition of marriage was. The lower courts simply held that it was within the discretion of the state to decided that some men shouldn’t marry certain women, because for some unarticulated reason, it “wasn’t fittin.”

Now IF the argument against Goodrich is “gay marriage ain’t fittin,” then I would agree with you and the Goodrich majority that this position has no legal standing, one way or the other. But that is not my argument, even though I believe it may in some sense be true. My argument is, marriage has a definition. Think of that definition as a framework, an empty framework, which any man and any woman can choose to enter into. If any individual wants to enter into a marriage, that is what a marriage is. If an individual doesn’t want that, they don’t have to enter into it, just as a sole proprietorship doesn’t have to incorporate, but may do so. If you find the current definition unacceptable to you, then you must propose a coherent definition of what “marriage” is to be, henceforth. The fact that you cannot do so is one reason I don’t buy your position. It is the reason I pointed to such absurd possibilities as marrying dogs, sheep, cars, or filing cabinets. If the argument is that I can marry anyone I want to, why not anything I want to? As long as each man has the right to enter into this thing called marriage, and each woman has the right to enter this thing called marriage, then there is no unequal protection of the laws.

I’ve heard over and over the cry “But that’s not fair to me, because I want what I entered into to be recognized as a marriage too.” I simply don’t buy that “I want” adds up to “equal protection of the laws.” What if five cousins wanted to form a household and call it a “marriage”? What if I wanted to call my farm a “library” because libraries have tax advantages that my farm doesn’t have? What IS it that makes a same-sex couple into a “marriage” at all? Is it that there are strong hormonal urges? Is it that at least one sexual organ is generally involved? I could argue on biological grounds that it is NOT “the same thing.” I could point out that throughout history, men married to women have also indulged homosexual partners, as have women married to men, and question whether same sex partners are particularly “similar” to heterosexual partners at all. That concept is a very recent one in world history.

That won’t satisfy you, but my position does have an internal consistency and integrity, and a basis in plausible legal argument. I believe the “equal protection of the laws” argument was not only legally unsound, but tactically erroneous, because it shoved well past what most citizens were prepared to accept, with results we’ve all seen very clearly. I’ve read the arguments that a majority of southern citizens who thought of themselves as “white” were also unprepared to back Brown v. Board of Education, but a very significant difference is that Brown sought enforcement of constitutional law already a century old, duly ratified by two thirds of congress and three fourths of the state legislatures. (Some of those legislatures ratified it at the point of a gun, almost, but they had just lost a bloody civil war. It was a price of ending military occupation, and once ratified, it was binding.) Redefining marriage, and it is a redefinition, to include same sex couples, was a novel argument without significant precedent in either law or history.

I’m not sure why you think I’m rewriting an authority to some preconceived conclusion. But if you have evidence of how I’ve so rewritten the majority opinion in Goodridge, you should point it out in the text.

That aside, I’ve reread your numerous posts, and I don’t see how any of them respond to the comments I’ve made. First, you’ve offered no argument justifying your claim that the state must respect a definition of marriage that predates the state, and thus, I don’t see how you’ve responded to the court’s argument that it has the authority to alter the definition.

Second, I’m not sure why you’re claiming that equal protection cases must apply to individuals, when, as a matter of law, only protected CLASSES (i.e. groups of people) are subject to equal protection considerations. And while the Supreme Court may not consider homosexuals as members of protected or suspect classes (although, there is some body of case law that would suggest otherwise), Massachusetts has laws protecting homosexuals (or, sexual orientation) as a class. So, I guess before I press this point further, I should ask: why do you think that equal protection claims apply only to individuals?

Third, even if equal protection must be linked to individuals who’ve been unequally treated under the law, the court has made the claim that the right to marry implies the right to choose your partner–not “your partner of another gender,” but your partner, full stop. As the court wrote it: The liberty interest in choosing whether and whom to marry would be hollow if the Commonwealth could, without sufficient justification, foreclose an individual from freely choosing the person with whom to share an exclusive commitment in the unique institution of civil marriage. Thus, there are individuals who’re discriminated against, insofar as they’re denied the right to marry the partner of their choosing. And even if the ‘original’ definition of marriage implied the right to choose your partner of another gender, the court admitted that it was, and provided sufficient legal grounds for its altering the civil definition of marriage. So, the question before the court was whether the implied right to choose your partner of another gender constituted an equal protection violation. And since the court found that it did, the court found subsequently that the definition of marriage should be altered so as to amend that violation.

Now, as to whether such amendment leaves open-ended the definition of marriage, I am agnostic (as is the court, evidently). Maybe there’s a way to claim that a four-way marriage contract would so alter the rights and obligations of the signatories as to hardly constitute anything similar to ‘current’ definition; that is, that the alterations would be significant enough that the new contract would, ultimately, constitute a new KIND of relationship. And, somehow, we would have to say that society had an outweighing public purpose in limiting the marriage contract to three signatories, rather than four+. But, then again, maybe society really doesn’t have a public purpose outweighing the expression of such a freedom.

I have read the majority opinion, and the dissenting opinion, in Goodrich. I downloaded a complete pdf copy the week the decision was announced. I’ve been analyzing it ever since. It is indeed within the power of the state to alter any contractual relationship authorized by state law. That has never been in contention. However, as you would know if you paid closer attention to the majority decision, the court decided that it had authority under the state constitution to amend that relationship, rather than deferring to the legislature to do so or not do so, because the state’s current marriage law deprived a portion of the state’s residents of equal protection of the laws. I have presented in detail why that is bogus, and you haven’t even attempted to answer that presentation, you have simply attempted to make end runs around it.

You are wrong that “civil” marriage did not exist before the United States. In the Commonwealth of Massachusetts, marriage was entirely a civil institution, albeit the Commonwealth’s original government had an established church guiding such decisions. The Puritans had no custom of church weddings — only a simple civil proceeding before an appropriate court or clerk.

I’ve also read the Supreme Court’s decision in Loving v. Virginia, and I’ve read the NAACP’s amicus brief submitting that the reasoning in Loving cannot be sustained if the reasoning in Goodrich is rejected. If Thurgood Marshall had the same level of creative insight that the current NAACP staff is displaying, he would never have had the competence to win Brown v. Board of Education. Virginia had a civil contract called marriage, which was defined as the union of a man and a woman. The plaintiffs, Mr. and Mrs. Loving, were a man and a woman. However, the state said that certain men could not choose to marry certain women, because their skin color had to match. Skin color had nothing to do with either the physical or emotional functions of marriage between a man and a woman; furthermore, distinctions by race are subject to “strict scrutiny” because the country had a history of building explicit racial distinctions into its laws, and had made a fundamental decision in three constitutional amendments to set them aside. It is an entirely different matter to say that the fundamental nature and definition of marriage should be revised, so that different connections between different combinations of the same individuals should also received the same official community recognition. No law in Massachusetts ever said “no gay man or woman may marry,” nor did any law say that “gay men may only marry gay women.”

As I’ve said many times, the Massachusetts Supreme Court majority erred by considering whether a definition of marriage discriminated between two different demographic groups, although I could have presented a rational basis for such discrimination based on biology, without any reference to religious faith. If the court had troubled to define its terms before beginning its analysis, it would either have to have started with an accepted definition of marriage, or reasoned its way to a sound basis for some other definition. I would submit that there is NO other definition which is not completely open-ended, although you’ve been reasonably logical in pointing out that a dog can’t enter into a contract, nor can an automobile. Equal protection of the laws applies to individuals, not to demographic groups. No man has been denied marriage, some men don’t want it. Ditto for women.

Now Stephen is way off the deep end in narcissism. He believes that if any state makes provision in its laws for a given contractual relationship, and if other states have not done so, nor has the federal government, then those who live in any state which does not so provide have been denied equal protection of the laws. Stephen obviously hasn’t had basic high school civics. We live in a federal republic. No matter how much we may debate whether the federal government has gotten a bit too big, or assumed powers it does not properly hold, it remains true that states are free to adopt different laws according to the will of the people of those states, which may even differ from federal law, if federal supremacy does not apply.

For example, in my state, the Family Medical Leave Act reserves to employees certain options that in the federal act may be mandated by employers. Have employers in my state been denied “equal protection of the laws”? Or have employees in the neighboring state? I think decriminalization of marijuana is probably a sensible measure, but I don’t claim that residents of Texas are deprived of “equal protection of the laws” because California law differs from both Texas law and federal law on the subject.

I hate to make the same point twice in the same post, but your arguments about Goodrich v Dept of Public Health might become more nuanced if you’d read the majority decision. The majority agreed with you that, ignoring even first amendment concerns, the uniquely historical definition of marriage has confined the institution to three-way contracts between partners in male-female relationships and the state. But insofar as that contract (and every instance of it) includes the state as a necessary co-signatory, it is within the power of the state to alter that definition. This is what the court said, and it is what the court said it was going to do with this decision. So, while you may be right that “marriage” existed before the United States, CIVIL marriage in the United States did not. Thus, it is rather obviously within the realm of state authority to alter the state’s definition of marriage. [Now, I could see how you might call the court on illegitimately appropriating a common term for legal purposes. But then, I don't see how you wouldn't be advocating for something like "universal civil unions," and not for the state to limit marriage to one man and one woman.]

The court’s more important finding, however, was that the right to marry implies the right between contract signatories to mutually assent to contracting, and this finding proceeds from the Supreme Court’s finding in Loving v Virginia. The idea, here, is that the historical definition of marriage in the United States has never allowed anyone other than the contract signatories to make the contract between the contracted parties. This implies that signatories in marriage contracts have historically had the right to choose their partners, unless the state could find a public interest outweighing that right to choose (and indeed, the court found that concerns of consanguinity constitute such an interest).

Given this right, then, the question before the court was whether enforcing a definition of marriage that restricted the right to choose a marriage partner of the opposite gender constituted a legitimate exercise of state authority–that is, one that comports with the liberty and equal protection clauses in the Massachusetts constitution. The court found that no public interest, no appeal to morality or religion, and no ‘historical definition’ could justify such an exercise, and as I’ve read your posts, you haven’t yet written anything to contravene this finding.

As for the old canard about letting people marry a river or a mountainside or their parrots or whatever, there’s no precedent for allowing such parties to enter into contracts. Rather, their owners are allowed to enter into contracts that involve such parties. So, if a dog owner wanted to marry his dog, he’d, in essence, want to sign a contract with himself. And since the state has no interest in enforcing self-imposed contracts, there’s no reason to think that such unions would fall under any definition of marriage.

The federal government has not. It chooses to openly discriminate against gay married couples which, to me, is a clear violation of the equal protection clause of the 14th Amendment. I am not trying to wish something be so just by saying it. To me the issue is as clear as day. The government says all people enjoy equal protection under the law – except homosexuals. If that’s not a double standard then there is no such thing. And, yes, lawyers on both sides can split hairs with cleaver arguments, but sometimes justice (which equals fairness) doesn’t need to be proved with a cleaver argument. It’s plain for all to see.

African-Americans were discriminated against long after they were granted freedom and it was both illegal and wrong. Women were likewise treated as chattel in violation of the constitution until they too were finally treated equally (although that is still debatable).

Discrimination is a tough nut to crack and sometimes it takes a long time for the state to see that what it is doing is both illegal and wrong. But I’m patient because I can see the light at the end of the tunnel. I am sure that within the next generation we will see legal discrimination against gay persons become a thing of the past.

This has been spirited and we are obviously on different sides of the fence. If I offended anyone I apologize.

Stephen

What struck me about your citation from Merriam-Webster was the introduction:

“Etymology: Middle English mariage, from Anglo-French, from marier to marry
Date: 14th century”

Without being an expert in the history of language, I would be willing to bet that 1(a)1 meets that etymology, while 1(a)2 does not. The first definition may, by some criterion or other, be right or wrong, but it has several centuries of etymology behind it. The second was added in the last fifty years, probably the last fifteen years, by some editor bowing to some sense of political correctness.

Now, I am not on principle opposed to issuing marriage licenses to same sex couples. But if it is to be done, it should be done well, and if it cannot be done well, that is good reason to pause about whether to do it at all.

It was dishonest of the dictionary’s editors to provide the etymology of the first definition, then toss in the second, without its own etymology. The dictionary undermines its integrity and authority by doing so.

An observant Jew finds the definition of marriage in the Torah — which incidentally does not prohibit polygamy, Christianity picked up monogamy from the Romans. A Christian finds the definition of marriage primarily in the Epistles of Paul, incorporating some of the Jewish definition. Until recently, a dictionary picked up the definition from common usage. The laws of the United States, which are by constitutional definition secular in nature, find the definition of marriage in what was understood by that term at the founding of the Republic, and for some 200 years thereafter. During all that time, not one person of homosexual inclination suggested that their partnership was a marriage.

So, what you seek is a CHANGE IN DEFINITION, not access to something which already exists. You already have access to marriage, as presently defined. You don’t want marriage. You do want to define what you want as marriage. Several states, which you list, have by due process of law accepted your position, and changed the definition of marriage. In those states, because those states have accepted your preferred definition, you can have all the rights pertaining to such marriages. Other states have not changed their laws. In those states, what you desire or have is not a marriage. Merriam-Webster is not binding on those states, nor for that matter is Black’s Law Dictionary. These are secondary authorities at best.

There is no 14th Amendment violation, no matter how many times you say “is so!” That is like saying, if Wisconsin guarantees me certain appeal rights concerning my insurance policy, and Nebraska doesn’t, residents of Nebraska have been denied “equal protection of the laws.” They are not under Wisconsin law. If they want it, they can move to Wisconsin, or they can write to their own legislators seeking similar legislation. To use a less hypothetical example, are residents of California denied equal protection of the laws, because they must comply with stricter vehicle mileage standards than residents of Texas? Go look up Supreme Court precedents on that point, and when you have done so, you may have something to say worthy of more consideration.

But I said you owed us “a definition or description that justifies same-sex marriage without drawing “arbitrary” lines to prevent polygamous or incestuous marriages (since you have complained of the arbitrariness of excluding same-sex pairs).” You have made no effort to show why Merriam-Webster definitions a(1) and a(2) are not arbitrarily limited.

I will not accept an answer that suggests I’m childish, nonsensical or a green meanie for asking the question.

Marriage Definition (from Merriam-Webster).

Etymology: Middle English mariage, from Anglo-French, from marier to marry
Date: 14th century
1 a (1) : the state of being united to a person of the opposite sex as husband or wife in a consensual and contractual relationship recognized by law (2) : the state of being united to a person of the same sex in a relationship like that of a traditional marriage b : the mutual relation of married persons : wedlock c : the institution whereby individuals are joined in a marriage
2 : an act of marrying or the rite by which the married status is effected; especially : the wedding ceremony and attendant festivities or formalities
3 : an intimate or close union

As I said, marriage is a contract. I’ll repeat 1a(2) here: “the state of being united to a person of the same sex in a relationship recognized like that of a traditional marriage . I hope that’s clear.

Siarlys, you said: “The reason same-sex marriages don’t have the same legal rights as opposite-sex marriages is that there are no same-sex marriages. It is an oxymoron”. You seem to be saying that if a state had same-sex marriage, those marriages would have the same legal rights as opposite-sex marriages. Well, Connecticut, Massachusetts, Vermont, New Hampshire and Iowa all permit same-sex marriage. It is not an oxymoron. Since these states have same-sex marriages they deserve “…the same legal rights…”, do they not? If not, why not? After all we are talking about the law.

John, you wrote: “You are just parroting a list of gay rights talking points…”. Guilty. I did repeat the talking point that there over 1,000 federal laws affecting marriage. But it is a fact whether you agree or not.

Lastly, the several states that permit same-sex marriage confer the same rights to both same-sex marriages and opposite-sex marriages. However, the federal marriage benefits are not available to those married same-sex couples. And that, as I said before is discrimination, a violation of the 14th amendment and is unconstitutional on its face.

You are just parroting a list of gay rights talking points, some of them demonstrably false.

Marriage has never simply been a contract. In the traditional legal view, the State is a sort of third party in every marriage – whence the requirement of a license and the bestowal of various benefits. Marriage has certain legal incidents no matter what the parties contract for. Noting ubiquitous “no fault divorce” concludes the demolition of your simplistic second paragraph.

It is easy to dismiss cows and dogs as childish nonsense, but you have not picked up the gauntlet I threw down: tell us what you think marriage is and why the state has any interest in it at all. You owe us a definition or description that justifies same-sex marriage without drawing “arbitrary” lines to prevent polygamous or incestuous marriages (since you have complained of the arbitrariness of excluding same-sex pairs).

As a bit of history please recall that marriage laws are contract law. They always have been and always will be. When someone files for divorce it is because one of the parties broke the contract in some way.

As to cows and dogs, well……………that childish nonsense wasn’t necessary.

Those are two different arguments. It is necessary to be precise. Only if there is no argument is it plain and simple. You are dangerously close to reducing your argument to that of a spoiled child screaming “I want what I want, I want it now, and I have a right to it.” The world doesn’t work like that.

IF you want to make a constitutional argument, you must stop trying to brush by all the constitutional counter-arguments and saying “there is no need to jump through verbal hoops.” There is indeed a need to do so. Incidentally, you aren’t getting very good results for your cause by simplistic demands. Thurgood Marshall got to be VERY GOOD at setting up and jumping through such verbal hoops, or more accurately, legal argument, in order to win Brown v. Board of Education. You and your allies are incredibly lazy trying to get what you want without that kind of hard work. Now, if you want to make a constitutional argument, respond point by point to what I posted above, instead of trying to run away from the fact that there are strong arguments against your position. Can you answer them?

The issue is not, legally speaking, who someone is allowed to marry. That was the issue in Loving v. Virginia, and that is why that case is not on-point for the same sex marriage litigation — although the NAACP attorneys can’t figure out why not. A man not only may not marry another man, he may not marry a cow, a dog, a tree, his car, or his stock portfolio. That is not because any of these marriage partners are prohibited by law. It is because marriage has a definition: it is a specific relationship between a man and a woman. It is nothing else. You wish to change that definition? That is not a matter of constitutional right, no matter how many times you stamp your foot, throw a mindless tantrum, and insist that it is. That is a matter of legislative petition. Good luck with it — I won’t stand in the way if my state legislature decides to write your petition into the statute books. I would prefer they do so by creating a distinct civil union, but that’s not a big deal to me.

“Marriage is not for procreation or infertile couples would not be permitted to marry.” Oh? Are you saying that if the government doesn’t require me to provide a high-motility specimen, or require the object of my affection to ovulate sometime within 30 days after a provisional license, it’s insincere about the nexus between marriage and procreation? I can guaranty without intrusive questioning that a same-sex couple won’t procreate by whatever “marital acts” they prefer unless it’s menage a trois.

Or must they declare marriages dissolved after X infertile years?

Must they also imprison fornicators who make a baby in order to prove their marriage/procreation sincerity?

As for “natural” attraction, must the government ask couples if they find each other sexually attractive? Why is that relevant? What if she says “no, but he’s got money and is good with kids, so I’d like to have children with him”?

Should spinster sisters or Norwegian bachelor farmer brothers be disallowed from marrying each other just because some are uncomfortable with incest? What if they promise not to commit incest? Why should such celibate siblings be denied the economic benefits of marriage?

Arbitrary, arbitrary, arbitrary! Unless, that is, you can tell me what marriage is and why the state has any interest at all in it.