Kearneysville, WV. Last week I published a piece suggesting ten positions that might serve to constitute a platform for those who are disillusioned by both major political parties and who long for an alternative that includes, among other things, a reversal of the concentration of power in Washington. Conspicuously absent from my list was any reference to the two most hotly contested social issues of our day: abortion and same-sex marriage. My second point (after fiscal responsibility) addressed the idea of federalism, and it is perhaps under this heading that the issues of abortion and same-sex marriage could be dealt. First, here’s what I said about federalism:

Federalism. The federal government has slowly insinuated itself into every facet of our lives through the congress, the courts, and administrative agencies. In most cases this leads to a loss of sensitivity to the diversity of regions, states, and localities. It reduces the opportunity for creative experimentation that could lead to the development of innovative solutions to vexing problems. Ultimately, the expanding scope and power of the federal government represents a threat to the freedom of individuals and communities. This must be reversed. Power must be returned to the states. Congress might cede certain prerogatives back to the states, or in the likely event that does not happen, states must act to assert independence from federal interference.

It seems obvious that abortion always should have been a state issue and that Roe v. Wade is, on multiple levels, bad law. The restoration of federalism could mean, at the very least, that laws limiting or restricting some forms of abortion should be the prerogative of the individual states. Ideally, the entire issue should be returned to the states where the people are free to decide.

Same-sex marriage is more difficult. To be sure, when the issue has recently been submitted to the democratic process, states have consistently voted against the legalization of these unions. The states that have approved same-sex marriages have done so via the courts and over the express wishes of the majority of the population. This represents an egregious usurpation of the democratic process.

But at the same time, one could object and argue that the courts are doing nothing different than upholding a basic civil right for a heretofore oppressed minority. Majorities can and have been wrong. The courts are doing a brave thing and are leading the way to a future where the equality of all persons is recognized by the law. The dull citizens need to be led by the wise men and women in the black robes.

There are those who argue that traditional marriage must be protected and that a constitutional amendment should be a central part of that strategy. Perhaps. But one need only recall the failed use of the amendment process to promote temperance to cast doubt on the efficacy of this means to effect cultural change. In terms of practicality, amending the constitution is an arduous process and unlikely to succeed.

Furthermore, if one is generally disposed to localism, one is forced to ask whether or not this issue might be better dealt with on a state level. But here is where things get tricky. What separates abortion from same-sex marriage is this: abortion represents the termination of something. Once the procedure is over, there is nothing left, legally speaking, to be done. With same-sex marriage, the “procedure” (that is, the ceremony) is just the beginning. The couple has a life together. They will, presumably, form a household. They may merge their property and accounts. All well and good. But what happens when they decide to move to another state? One whose populace has expressly rejected same-sex marriage? The full faith and credit clause of the constitution would seem to indicate that one state is obligated to recognize a union sanctioned by the first state but not by the second. There is nothing analogous in the abortion issue and this, it seems, is the reason abortion could easily be an issue settled at the state level while same-sex marriage is more difficult.

Perhaps the government should simply get out of the marriage business altogether. But that doesn’t look likely, and so we are left with the question of culture. Can a society survive if the vast majority of the populace do not share a common culture and together affirm a collection of common ideas? Is an affirmation of “liberty for all”—where liberty means the freedom from any constraint or authority—an adequate foundation for a society? Or does, in fact, this sort of absolute liberalism consume itself in the very logic of its existence? Can a society exist when all that unifies it is the continual emancipation of desire? The obvious answer, it seems to me, is no. But where can one find a common culture? The affirmation of certain basic rights to life, liberty, and the pursuit of happiness devoid of any metaphysical conception of what it means to be a human being falls short. Rights claims without acknowledgment of obligations and ends suited to human beings are little more than emotivist utterances that can be asserted and expanded with ever-increasing shrillness and incoherence. This is precisely where we are today. The same-sex marriage “debate” is the logical outcome of a society steeped in the language of rights where the understanding of rights has been separated from any notion of the human person as more than a bundle of expanding appetites. Such a “debate” cannot be won by either side, for winning a debate implies rational discussion, but in an emotivist context, the only victory is gained by force.

James Madison argued that the political system produced by the constitution of 1787 provided for certain institutional impediments to the demands of the majority but that ultimately the will of the people could not be stopped. As such, he argued that the virtue of the citizens was the primary bulwark against the usurpation of freedom. But a common consensus about virtue (and about freedom) implies a common underlying culture that consists of more than demands for individual rights. If the sole purpose of human existence is to liberate every desire, same-sex marriage is clearly a good thing so long as it is desired. If, on the other hand, there are ends and means proper to human persons and we are obligated to conform our actions to these norms, then same-sex marriage may not be within the realm of that which is morally good for human persons. It’s a question of culture that, as these questions do, goes to the heart of what it means to be a human. It is a question that cannot adequately be answered by recurring simply to competing rights claims.

Madison could imagine a national community united by a robust conception of virtue. As we have grown larger and more diverse in our thinking, that is no longer the case (if it ever was). We may generally agree on abstractions such as equality and individual rights but that is not enough to form a coherent community. So we are left with an incoherent national community (did such a thing ever exist?) and the possibility of more or less coherent communities of a smaller scale and even these will be difficult to maintain, for we all drink deeply from the fount of a popular culture where the liberation of desire is the first fundamental of the faith.

Finally, it seems curious that the advocates of same-sex marriage seem interested not only in equal rights but in equal acceptance as well. They want the legal right to marry but they also demand the blessing of everyone else. In a world where conformity is denigrated and originality is praised, this demand seems odd. Why should they care? It seems there exists an abiding desire for a common culture after all. Acceptance. Unity. Concord. Words that point to natural desires that cannot be realized by force. Tolerance is a one way street in a world of expanding desire.

Local Culture
Local Culture
Local Culture
Local Culture


  1. Mark, congrats on this excellent essay.
    When a ‘culture’ slaughters its infants you know the party’s over. Abortion, very simply, is murder.

    The fact often left out of the homosexual “marriage’ debate is that homosexual ‘sex’ is abnormal.(I don’t care how you cut it, one guy wasn’t meant to put his ‘dee-dee’ in another fellows ‘doo-doo.’)

  2. I agree with almost everything you say, but you are mistaken about all states with SSM having gotten it undemocratically through the courts. Maine almost got SSM by legislative action until the people overruled the legislature last Tuesday.
    Further, I think it’s legitimate to ask a question you don’t ask: what state interest is served by SSM? This seems to me at best loosely related to the salient question of the “metaphysical conception of what it means to be a human being.”
    The case against SSM in the courts has tended to founder on the question of what state interest is served by opposite-sex marriage (OSM for convenience), with some states (e.g., Massachusetts) declaring there’s no rational basis for distinguishing OSM from SSM and at least one (Indiana) saying that procreation is a rational basis (Morrison v. Saddler). But if there’s no rational basis for preferring OSM to SSM, what is the basis for any state involvement in marriage? Epidemiology?
    If there arises a social consensus in favor of the position that OSM-only is sheer invidious discrimination, then I suggest that the State should get out of the marriage business altogether. I say that not as a bomb-thrower, but as one who thinks that the state has no business dispensing pats on the head (and tax benefits) to any pair of consenting adults that feigns sexual exclusivity, and who can think of no basis for state involvement if the basis isn’t closely related to sexual complementation (part of what it means to be human) and natural family formation.

  3. Mark,

    The language of the “full faith and credit” clause is this:

    “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.”

    Now, the Supreme Court has held that (and I quote Wikipedia here, for the sake of ease, though my Family Law text will tell you the same), while judgments must be respected across state lines, “[T]here are some limitations upon the extent to which a state may be required by the full faith and credit clause to enforce even the judgment of another state in contravention of its own statutes or policy….And in the case of statutes…the full faith and credit clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state, even though that statute is of controlling force in the courts of the state of its enactment with respect to the same persons and events.”

    Marriage is not a judgment, so it falls under the lesser standard of evaluation. The idea behind the SC quote is particularly true in matters of strong public policy, of which same-sex marriage is a part. Therefore, as long as some state legislatures have almost overwhelmingly rejected same-sex marriage, it is unlikely to be considered a matter for Constitutional “smackdown.” (Divorce, on the other hand, is a judgment, and therefore, FF&C applies without exception.)

  4. If you think that the function of marriage is to provide an environment for children to be born into where they will be supported and nurtured in virtue and not abandoned to the streets or the orphanage, then the sate does have an interest in marriage. And it has an interest in promoting hetero-marriage since it is opposite sex parings that is the only relationship that will result in the production of children, thus requiring an social institution (marriage) to deal with this “byproduct” of their pairings.

  5. I am not so sure that I buyt the idea that SSm is “simpler” than abortion. You say that tradition suggests that one state must accept a marriage (and all the rights and responsibilities that accrue to same) arranged in another state, regardless of its own rules. Why does this not apply to the rights that accrue to a fetus?

    You can extend the logic as far as you want. Does the “this thing does/does not counts as a person” idea have any limits? Let’s say I live in Arizona, which says six-year-old girls count as people. But for whatever reason, Nevada passes a law that says kids don;t count as people until they are seven. If I am a law enforcement official in Arizona and I hear that someone is taking one of my constituents to Nevada to be terminated, do I have any right or responsibility to intervene? Would Nevada have any responsibility to respect the rights that Arizona has bestowed on the six-year-old? What if, instead of six years versus seen years, the issue was first semester versus second?

    Why is it that you think it is essential for one state to respoect the other’s rules regarding SSM, but not the definition of life?

    Finally, at several points in this discussion, you say, “That’s not practical, so we have to think of some other answer.” But in your previous post, you threw that to the wind and just laid out what you want to do, regardless of practicality? Just wondering.

  6. Dr Mitchell,

    I don’t think I disagree, per se, with the conclusion of your essay, but your censure of emotivism as a means to that conclusion seems to have one or two premises the justifications of which I’m having trouble uncovering.

    So, you conclude that “[r]ights claims without acknowledgment of obligations and ends suited to human beings are little more than emotivist utterances that can be asserted and expanded with ever-increasing shrillness and incoherence.” I take it that your justification of this conclusions is something to the effect of “liberty” utterances express desires, while “obligation” utterances express, what, non-desires/facts about the world? Something like that.

    OK, well, two big problems for this view. (1) Just what do obligation utterances express? Is there any reason to think that obligatory utterances do not express desires–say, the desire for society to protect a different (better?) version of the human good?

    And (2), suppose such utterances do express facts about the world (or whatever). Why should we think that pairing desire utterances (say, “Hooray, Liberty!) with such supposedly non-desire utterances (say, “It is better for us to be Temperate.”) should mean that the non-desire utterances should hold sway over the desire utterances? So, when we celebrate, say, the temperance of liberty (which, as near as I can tell, is what your essay is calling for), why would you think that those kinds of utterances would have some sort of fact-based obliging effect, rather than a desire-based emotive effect?

  7. I’d have to agree with Sam M. The position that abortion is somehow better suited to state-level regulation as compared to SSM seems exactly backwards. The benefits and obligations of marriage have historically been regulated by the states, and this is one of the few remaining areas of modern life where the states still have the major say. By contrast, determinations about the rights of fetuses to moral protection seem to implicate federal concerns such as due process and equal protection.

    I agree that Roe v. Wade was bad law. But the reason it is bad law is not because it violated federalism concerns. It’s bad law because it created a constitutional right to privacy on very thin precedential grounds, and shortchanged the issue of whether the fetus is a person and therefor has rights to due process and equal protection under the federal constitution. I’m not saying that issue is an easy question, but it deserved better consideration than Roe v. Wade gave it.

  8. “Finally, it seems curious that the advocates of same-sex marriage seem interested not only in equal rights but in equal acceptance as well.”

    but isn’t this the case with all civil rights issues? would one say this about the right of a white person to marry a black person? isn’t there some semblance of forcing public acceptance by declaring laws which prohibit such unions unconstitutional? didn’t Brown force acceptance of black children in previously white schools, where in many instances it was considered morally unacceptable?

    with respect to the view that the state has a stake in the upbringing of children, and therefore should promote OSM, ignores the many same sex couples that raise perfectly fine children, and the many dysfunctional heterosexual families that produce modern monsters. choosing one over the other does not determine the child’s quality of life, his morality, or his psyche.

    furthermore, the existence of marriage between a man and a woman beyond child bearing years, or of a male/female couple where one is sterile, nullifies the argument that OSM has a primary function of the procreation of children. why allow the above marriages? do they not also fly in the face of the stated state interest? why not take children away from single parents and place them in homes with two parents?

  9. The widespread use of artificial contraception weakens the argument for traditional marriage – at least to the extent that the argument for traditional marriage is based on the idea that the sexual union of man-woman tends towards the creation of offspring whose interests should be safeguarded through state-sanctioned marriage. Like homosexual couples, most heterosexual couples now engage in sex that is not procreative. While the link between heterosexual sex and procreation is not lost – heterosexual couples can stop using artificial contraception and begin having procreative sex (something homosexuals cannot do) – the presence of artificial contraception means that life-creating sex is no longer a fundamental aspect of heterosexual marriage. Without the potential for child-bearing at the heart of the sexual union of man-woman, it is harder (although not impossible) to make the case that man-woman should have special benefits from the state that man-man or woman-woman do not. While voters may succeed in preserving traditional marriage for the foreseeable future, I wonder if the battle has already been lost.

  10. You know, when we’re at the point where educated individuals in our culture feel it necessary to refer to marriage by an acronym, “OSM,” and consider it merely one kind in a spectrum along with “SSM”, we’re really through the looking glass.

    Cheeks is right – the act itself is highly abnormal (I say perverse), the idea that it forms the basis of marriage like the natural relationship of men and women to each other, is crazy. And here the State, as subordinate to the society that brings it forth, has every interest in promoting the very thing that, more than anything else in this world, ensures its future and the future of us all. The idea that the State should cease privileging marriage because it may offend the sexually disordered, is crazy. These so-called debates are surreal. 20 years ago I never dreamed we’d be at this point.

    I suppose though it shouldn’t be surprising in a culture that considers killing your own babies to be a cherished right – such a culture has already lost its collective mind.

  11. As regards localism though. The proper answer I believe is that if Adam and Steve move to some locality that does not accept their unnatural state, then they simply don’t belong there and should not expect any local recognition. They are free to live among those of similar disordered mind, they should expect no welcome. I would expect the same and have no desire to live somewhere I believe the locals are all nuts. Let them make their own rules so long as they respect the borders. Good fences make good neighbors. Of course we are having this discussion in the context of the USA, which means we can’t keep to the above. Does this put into question the USA as it exists today? Where vast swathes of the country haven’t a right to order their affairs as they see fit because of the above? I think the current political arrangements make any form of localism worthy of the name impossible.

  12. I don’t consider “OSM” to be “merely one kind in a spectrum along with ‘SSM’.” I was trying to summarize how the cases have been dealt with by the courts without tediously spelling out “opposite sex marriage” repeatedly. You cannot attend a Nuptial Liturgy in my Church and come away with any doubt about the procreative teleology of marriage.

    ‘Nuff said on that point. Any personal slight of me seems incidental to the “through the looking glass” point, with which I agree. How can you argue that same-sex couples have an equality right to marry unless you know the nature of civil marriage? Do living people have an equal right with the dead to have people gather and eulogize them – an equal right to a funeral?

  13. Thanks for the thoughtful comments. I will try to address very briefly a few.

    Jonathan and Steve K.
    If marriage is simply left to the states, and some approved same-sex marriage and others did not, I have a hard time imagining a stable solution. Steve, you argue that they will simply not be married if they move to a state that doesn’t recognize the union, tough for them. I just don’t that as working over the long haul and so maybe we agree that this is a strike against our hopes for a localist solution.

    Sam M. and Moonman
    It is for the reasons spelled out above that abortion seems simpler than SSM. There is no on-going relationship once the procedure is done. Furthermore, if the unborn is fully human and vested with rights equal to all other humans, then the laws of murder are adequate. Those are state laws and there is no need to extend the issue to the federal level.

    Aaron Schroeder
    I mean to contrast emotivism with a view that holds that humans have, by nature, obligations and duties that should not be ignored. The abandonment of any discussion of human nature or teleology has, I think, opened the door to this emotivist kind of political discourse where power, not justice, is the only currency.

    Sam M.
    In my previous post, I was trying to imagine a set of principles/positions that would appeal to a wide swath of disgruntled American voters. I left out SSM and abortion because those tend to divide camps very quickly. But they must be dealt with at some point so this post was an attempt. The practicality question is one of prudence, I suppose. When issues are addressed is as important as the issues themselves.

    You are surely correct that SSM is merely a symptom of a larger set of questions related to sexuality. As a political platform, running against contraception is a non-starter, though. But you have stabbed right at the heart of the issue. Is there a way to publicly defend traditional marriage without going down this road? Is the “good for society” argument worthwhile? How about “historically normative”? I admit, these seem weaker, and the long term strategy should include a discussion of the metaphysics of human sexuality and human nature in general.

  14. “Furthermore, if the unborn is fully human and vested with rights equal to all other humans, then the laws of murder are adequate. Those are state laws and there is no need to extend the issue to the federal level.”

    I think this begs the question.

    Let’s assume that one state does, in fact, vest fetuses with these rights. And that another state does not. I am not at all sure why the fact that “murder is final” makes SSM less complicated than abortion. Or in what sense this takes care of the problem of whether one state must respect rights acknowledged in other states.

    In the case of a SSM, you are arguing that, since I was married in Massachusetts, Kentucky is compelled to recognize this marriage. OK. Fine. So. If Kentucky says a fetus is a person at conception, should I be allowed to travel to another state and have the pregnancy terminated?

    This is not a new question, of course. Should I be allowed to travel from a slave state to a free state with a slave? If I do, does that person remain a slave? Do the rights (or lack thereof) go with the person (or fetus or slave)?

    I do not think that we relied on state laws to resolve such issues at all times. And not to be obtuse… but again, I am not at all sure why the fact that killing the fetus simplifies the issue in any way. I am aware that you said it simplifies the matter. I just don’t see how.

  15. The agrument appears to be this:

    “Once the procedure is over, there is nothing left, legally speaking, to be done.”

    That depends on where you live. If you live in a place where abortion is illegal, then there is plenty to be done after an abortion. Namely, the application of some kinf of penalty. In some states, perhaps this would be something akin to a murder case. Some states might arrange things differently. Some might make it legal altogther.

    Whatever the case, I presume that some people will travel from a state where abortion is illegal (and the fetus is vested with the rights of other citizens) to states where that is not the case. The question is whether a doctor should be allowed to do an abortion in that case. And whether a women ought to be allowed to let it happen. If the second state is required to respect the rights granted to the fetus by the first state, again, there is plenty to be done about the situation. Or am I missing something?

  16. I have been associated with the Right to Life cause in one capacity or another for some 27 years, and am an attorney with non-trivial constitutional interests.
    Thought experiments are well and good as philosophical exercises, but I don’t think Sam M’s concerns are going to gain any legal traction even if there ever is a federalist/localist solution to the abortion controversy – essentially, a reversal of Roe v. Wade without enshrining the opposite view of fetal personhood. The right to travel is just too well ensconced in law for it to be likely that the State can either forbid one to travel, even for a lethal purpose, or to punish one upon return for acts done in a jurisdiction where it was lawful. (I was bitterly disappointed with Christian friends who 25 years ago supported Roe v. Wade on the basis that the alternative was a “caste system” where only wealthy women could travel to get abortions. Well, yes: the rich always have more resources to obtain goods – or to do evil with legal impunity.)
    The only exception I can imagine is if abortion becomes seen internationally as equivalent to genocide or other war crimes, where legality under the positive law of an inferior jurisdiction will not avail as a defense.

  17. I agree with the gist of this article, but I have to make one quibble:

    Dr. Mitchell writes: “But one need only recall the failed use of the amendment process to promote temperance to cast doubt on the efficacy of this means to effect cultural change.”

  18. I agree with the gist of this article, but I have to make one quibble:

    Dr. Mitchell writes: “But one need only recall the failed use of the amendment process to promote temperance to cast doubt on the efficacy of this means to effect cultural change.”

    An amendment banning same-sex marriage is not trying to bring about cultural change, at least not in the same way as the temperance movement. It is trying to prevent cultural change by codifying what is already a (barely) majority opinion, and has in the past been a widely held cultural norm. Cast in this light, a constitutional amendment seems like a much more modest idea. Not a cure-all by any means (at times I doubt the wisdom of written constitutions altogether), but not a radical boondoggle either.

  19. These moral issues are a lot older than the American Constitution, which in itself is not helpful on either one of them. I don’t have to preach here that culture depends on the “cult,” and in a political regime (not a nation) where there is no cult, or where all cults are equal, law, instrumental or natural, is not likely to solve deep moral issues. It took about 650,000 deaths to “solve” slavery.

    Christian marriage thrived in the Roman Empire long before Christianity was even recognized by the state. There is no such thing, by the way, as “opposite sex marriage,” or “heterosexual marriage.” There is only marriage that is part of a created order in which we are under authority. If our cult-less society wishes to make names for things they are not capable of naming, it’s not something that law at any level can remedy. In a soul-less democracy you can marry a horse if you can get a majority, or two automobiles can marry each other and live happily ever after.

    This is not the musing of a cynic or even a pessimist (well, not entirely). My priest likes to say that the Church is never stronger than when poor and under siege. Well, the Church is the guardian of marriage, not the state.

  20. Mr. Willson: yes and no. Marriage is by no means an apolitical thing, and it is only in the strange world of the faceless modern nation-state that we could conceivably separate the conditions for healthy relationships and the propogation of the community from politics. We have public marriage ceremonies and marriage certificates for a reason.

  21. Well, I don’t really have any historical references to back it up, but it seems like the rhetoric about family being the social unit at the basis of healthy communities has a lot of truth to it. Therefore, the public (used here to refer to a community, not a giant nation-state) has a pretty big interest in marriage, and codifying it and celebrating it seems like a logical and natural thing to do. Surely feasts in celebration of marriage are not solely an excuse to party!

  22. The reason “federalism” will be a shaky foundation for a political platform is that we have 300 million opinions about exactly what that means. Ultimately, that is why we have written constitutions — the constitution, as Justice Scalia said, means what it says, not what we think it ought to mean.

    I fully support Roe v. Wade as a conservative decision reserving certain intimate decisions to the individual, rather than to The State, whether the state concerned is the federal or state government. Yes, its true, if we accept the premise that from the moment of conception there is a full human life, entitled to full protection of the law, that fails. However, until that new life can survive outside the womb (without breathing machines, etc.) nobody can take upon themselves the duty and pains and privileges of carrying that new life except the woman in whose womb it grows. I accept that for the first six months, it is her decision, not one for police action to make for her. State-level tyranny can be worse than federal tyranny, for individual freedom, as Madison pointed out many times in The Federalist Papers.

    Now when it comes to gay marriage, I am so frustrated with the mindless idiots who have been presenting legal arguments against it, because they are missing out on clear cut principles that could have short-circuited this whole controversy. I know, they are sincere, but they are missing the boat. The Supreme Court of Massachusetts failed to begin by defining its terms. What is marriage? Let us assume, arguendo, that it is the union of a man and a woman, forming a single family, with or without intent or ability to procreate. Does it deny “equal protection of the laws” to deny a marriage license to some combination that is not a man and a woman? No. Every man, and every woman, has an equal right to enter into the relation called marriage. Every “gay” man is a man, and every “gay” woman is a woman. If it were not so, the very term “homosexual” would be without meaning. Many people appear to be capable of being either one, at one time or another. No man, and no woman, has been denied marriage. Equal protection of the laws applies to individual persons, not to demographic groups. Ergo, the “gay marriage” crowd is not seeking equal protection, but recognition of a new type of human relationship, which the community may or may not wish to grant recognition to.

    Incidentally, while I agree with those who have pointed out quite graphically that human anatomy was not made for gay sex, or as I like to say, heterosexuality is obviously the biological norm for the human species, I also support Lawrence v. Texas, as a matter of privacy. What you choose to do with another consenting adult in the privacy of your own home is your own business, not a matter for the police. If I think it is a sin, I have a right to say so, just like a church that prohibits alcohol has a right to say so, even though drinking is legal, and, as pointed out in the original article here, Prohibition was a colossal failure. Yeah, the decision whether to license two people of the same sex as a “marriage” or a “civil union” or whatever, or not, should as a matter of federalism be up to the states. Incidentially, it seems to me that states would NOT have a duty to grant “full faith and credit” to a “gay marriage” from another state, because there is no such thing in their state to grant. Precedent: a case from Massachusetts that an enslaved woman brought into Massachusetts is free, not because that makes any change in her status, but because under the laws of Massachusetts there is no authority to restrain her in the state of slavery.

  23. Siarlys Jenkins,

    If you read the court briefs filed in Goodrich v Dept of Public Health (MASC 2003), you’ll read that the complainants were not seeking redress of an equal protection claim in terms of rights granted to individuals. They were seeking redress of an equal treatment claim in terms of rights granted to couples. This move, however, seems pretty reasonable, given that marriage is not a right, nor are its privileges and benefits, afforded to a man or to a woman; they are afforded to a man AND a woman–to a couple. And so when you claim that “every man, and every woman, has an equal right to enter into the relation called marriage” you aren’t accurately describing the law, given that only a couple, and not each man or each woman, can (legally) enter into the contract. And since you aren’t accurately describing the law, it’s hard to see why the “short circuiting” argument you offered will offer a promising avenue for the straight-marriage activists.

  24. Siarlys,

    I do heartily agree with this: “Incidentally, while I agree with those who have pointed out quite graphically that human anatomy was not made for gay sex, or as I like to say, heterosexuality is obviously the biological norm for the human species, I also support Lawrence v. Texas, as a matter of privacy. What you choose to do with another consenting adult in the privacy of your own home is your own business, not a matter for the police.”

    And, while I’m at it; to all who served, “Thank you.” To all who served in combat, “God bless you!”

  25. Look, it is altogether too tempting to make the “marriage” issue too complex. The “conservative” position is simple: marriage is a covenant (contract, sacrament) between a man and woman that is honored by the community and protected, to one degree or another, by law. The “liberal” or (more accurately) “progressive” position is also simple: the individual always trumps the community, and whatever marriage is, it must first of all recognize the integrity of individual choice. To the extent the state is involved, it must first of all be directed to that end. If one is progressive, or in today’s terms even “non-judgemental,” what we have in our real world must seem quite ideal, or at least tending that way. The norm is serial polygamy, in some demographic groups children are born outside of any definition of marriage over two-thirds of the time, abortion and divorce are available to anyone (and for all intents and purposes at no material cost) who desires them, and there appears to be little moral disapproval of any of this, or at least none that can be uttered in the public square. That “marriage” has been secularized–that is, made a matter of democracy and law–is quite beyond dispute, but it does not change the reality of what it is. It comes from the cult, and it is the responsibility of the cult to preserve, protect and defend it. If I cannot raise children who raise children to understand and believe this, there is not a thing you can do in any legislature that will have any effect on the progressive drift.

  26. I have read with interest several of the recent posts–particularly Mark’s 10 point article and this one. The conversation on the porch had already gone on for a while before I stopped by, and since then I’m only able to stop by when I have the time, so, I’m sure there is a lot about what you are trying to do that I don’t understand. I won’t even mention my lack background in many of the areas that are being discussed. Localism is a new concept to me, though in many ways, as I understand the conversation, I have been living it. It overlaps to a considerable degree with conservative, which I am–mostly, I have lived in the same house for 35+ years, I have rebuilt and added to it with my own hands, and I seek to contribute to the life of my community–The Alleghany Highlands of Virginia. In general I think that decisions that affect our lives on a daily basis can best be made on a local level.
    I say in general:
    It seems to me that the bulk of the discussion, I have read here has taken place around somewhat utilitarian viewpoints:
    * This society as we know it is going to crash, what kind of
    community do we want to try to build in the aftermath?
    * The direction our government/culture is going is bad, what
    are the thoughts/worldviews with which we can infect the next
    generation so they can make a difference? (Since many of you
    are educators, this seems to be a big theme, here.)
    * Even more radical thoughts about secession, etc. are bounced

    I see less of an ethical discussion. In an overarching sense, what is right?
    This article clearly moves the discussion into that realm. Bob’s very clear comment, “When a ‘culture’ slaughters its infants you know the party’s over. Abortion, very simply, is murder.” clearly identifies this as a moral issue of the highest level.
    In commenting on another FPR post (The Agenda: Political or Economic?), obviously raising ethical considerations, Ryan Davidson said, “Any answer to the question “What comes next?” which fails to treat the prospect of a billion deaths with gravity is one which I contend cannot be taken seriously. Thus, the question which is most important to me, and which seems to receive precious little attention around here, is how to have a society of front porches given the realities that we face without simply writing off hundreds of millions if not billions of lives.”

    What are the ethical/moral underpinnings of any brave, new, smaller world that is being proposed?
    One comparison:
    One of the 10 points is Environmental Stewardship. To be meaningful, such an effort cannot be merely local. What I dump into the Jackson River, which flows behind my house, impacts Chesapeake Bay watermen, hundreds of miles away. For me to pollute their water is intolerable. Could the same be said for the matter of the respect for human life? Unless we are prepared to localize back to a tribal culture, do I want to foster a form of governing that allows neighboring entities (states, towns, independent nations—in the case of secession) where human life is not respected? Can I really expect to be insulated from that influence?
    Especially, for those who see this discussion as leading to a modification, rather than a replacement, of the present governmental structure of localities, states, and national government, I think a question might be in order:
    What moral/ethical issues are so important that they cannot be decided on a local level?

  27. A note to Aaron Schroeder:

    I have not read the briefs, but I did read and download the majority opinion in Goodrich, and it was based on “equal protection of the laws.” I know of no legal precedent or framework for extending equal protection to each or any couple. The decision assumed that there were two demographic groups, heterosexuals and homosexuals, each desiring the benefits of something called marriage. Framed in that way, of course it is reasonable that each should have equal access, there should be no discrimination. However, if marriage IS, structurally speaking, a union of a man and a woman, then demographics doesn’t enter in. A man who claims to be “gay” hasn’t been excluded from marriage, he doesn’t want it. If we are each free to “marry whatever we want,” then I can marry my dog, my horse, my car, or a tree!

    This is a major difference from civil rights laws concerning race. America and most states had, for many years, laws specifically providing that INDIVIDUALS of certain colors or national origin were excluded from rights available to all other citizens. Nobody ever wrote a law saying “No gay person may marry.” In fact, a gay man has to this day the right to marry any woman who will agree.

    John Willson: I think you are making the marriage issue muddied, rather than making it less complex. Marriage as a sacred covenant has no standing in civil courts, although it is paramount within religious institutions. A legal argument cannot advocate this philosophy or that philosophy, it has to articulate enduring legal standards. If “equal protection of the laws” applies to individuals, then marriage as the union of one man and one woman is available equally to all. If it applies to “couples” or “demographic groups” then there is no good reason why a same sex couple should not receive a marriage license. Now what animates people emotionally is another matter, but that won’t secure a court decision that will last.

  28. Siarlys Jenkins,
    You have made my point. Once you make marriage a “legal” or “political” matter it ceases to be marriage. It becomes whatever the state says it is. This is where so many localists go wrong. The fight is never to bring an issue into some lower political arena, like making abortion a matter for the states to decide, but to keep all things that are PRIOR to government out of the sphere of government. It is sometimes prudential to take what one can get, and I would sooner have local or state governments dealing with marriage than national governments, but the whole point behind the genius of our system as it once stood is that there are many things that are simply beyond the ability of government to understand, much less regulate. All law is, of course, regulation. Your appeal to “articulate enduring legal standards” is beside the point, endlessly complex and arcane, and entirely a symptom of a progressive, instrumental view of law that has no beginning or end, just process. “Equal protection” has as often been a refuge for scoundrels as any other abstraction. If your test of a decent society is to “secure a court decision that will last,” then I say, and truly, with all good will, best of luck.
    And to Mr. Merrell,
    The answer, not being flippant, to your last question: never.

  29. John,
    If I understand you, there are never any moral/ethical decisions that are so important that they cannot be decided on a local level.
    So, tell if I’m wrong. If things were the way they should be Covington (where I live) as a local community should be able to decide to pollute the Jackson River, destroying it downstream, including the oyster beds in the Chesapeake.
    That would give our paper mill quite an economic advantage.

  30. Howard,
    Good, you respond with something that is not an abstraction. First of all, if your community pollutes my community we have a problem, and one that can probably be worked out. If we go by the logic that every environmental action affects every other environmental action then we end up with Kyoto and worse. Let’s stick instead with your point. I doubt that what you do in Covington will destroy the Chesapeake lobster beds. My Dad dealt with Bausch & Lombe dumping rouge from glass grinding into Seneca Lake in the Finger Lakes for several years. The lake was marvelously able to clean itself, and that in a region that is an incredibly interconnected ecological system. We should never panic over these things. Second, I doubt that people downstream on the Jackson River would let you get away with it for very long. Your paper mill might have done it all right in 1880, but not now, and the folks downstream might get you good, one way or another. The real danger is giving control over such things to the Feds: “I’m from the Federal Government, and I’m here to help!” How do you like the TVA? Stewardship is never a matter for either big governments or big corporations. It is for communities, and families, and neighborhoods, and individuals.
    Best, John

  31. That’s what I thought.
    If the people down stream wouldn’t let us get by with it, then we are prevented from making a purely local decision & rightly so.
    By the way. The stuff we used to dump either was or became dioxin. Of course we are now perfect environmental neighbors. You can drink the effluent as it leaves the mill. 🙂

    I totally agree about the Feds generally not being much help when they show up to help.

    Thanks for the conversation. I was just in the Finger Lakes for the first time a few months ago. Lovely area.


  32. John Willson, now we have some common ground. Premise: marriage pre-dates the United States, the ratification of the Constitution, and therefore it is what it was, a priori the United States as a political entity. If that were LOGICALLY extended to all kinds of other facts, it would be very doubtful (locig can be totally irrational), but it is pretty clear cut here. It is a good answer to the chief justice of the New York Court of Appeals, who argued from a minority dissenting position “marriage can’t be between a man and a woman because it just IS.” On the contrary, it can indeed. It is, and was before American jurisprudence every existed. All legal reasoning must begin with that as its foundation. And therefore, the reasoning in Goodrich was wrong.

    There is a parallel in rights reserved by treaty to Native American nations. They may possess rights that are not possessed in common by all citizens because they were here first, and they signed treaties giving up lands and other things to the United States, while reserving rights they already possessed. If those treaties were not imposed by right of conquest, or even if they were — if the victor conceded certain residual possession, then it is theirs no matter what law the United States subsequently adopts.

    When it comes to your discussion of pollution though, you are being hopelessly idealistic, bordering an anarchy, but on the levels of “autonomous self-governing communes” rather than perfectly virtuous autonomous individuals. You obviously haven’t paid attention to the condition of the Cuyahoga River before the Clean Water Act was passed, and I could add all kinds of conditions in Lake Michigan, Lake Huron, Lake Superior… not to mention Erie. You would know better about Ontario. Where there is a common resource that one or more parties may pollute, causing damage to another, or all the others, there must be a common authority exercising jurisdiction. In matters that are inter-state, that is the federal government.

  33. Howard,
    I’m so glad you liked the Finger Lakes. Did the Feds clean up the mill?

    Siarlys Jenkins,
    Do you really think the Clean Water Act cleaned up Lake Erie, the Cuyahoga River, Lake Michigan, and apparently all of north America? A good friend of mine who was a gov water official in both Bush administrations and also headed the office of the Great Lakes under John Engler in Michigan would disagree. He’s also a Catholic and a lawyer and understands stewardship in environmental matters much better than I do. I’m no idealist–that’s for Plato and Emerson and abstractionists. I think those who really believe that the national government does anything very well are the ones with Platonic delusions. I’m also not an anarchist (although I like some of them) or even much against government, as long as it remains our servant and doesn’t try to be our master.

  34. John,

    I’d have to say that the Feds–at least in large part–made us clean up the mill.
    However, you get no argument from me on the general ineptitude, or maybe worse, of the Federal Gov. on many fronts. My question was not intended to defend the status-quo. Rather I am just asking, “Are there matters so important, or impacting on other locales, that they cannot be left to solely local decision?”
    I think that if a version of localism–or whatever it is called–is achieved that there must be some mechanism of cooperation or submission that will prevent one community from harming another. Presently our Federal and state governemnts claim to do that. I’m not arguing that they do it well. I do think that as Siarlys implies in her post, that such a mechanism is necessary.
    This really isn’t about environmental issues, in the usual sense of the word, though. I was only using environmental issues, since Mark included it in his 10 points post, as an illustration. My real question is, “Should a system of localism be encouraged which would include local autonomy over issues related to the sanctity of life?” With our present mobility and inter-connectedness, would a prolife community be negatively affected by neighboring extreme prochoice communities? Is there a moral/ethical parallel to ecology?
    Or another way of putting it. At the top of the homepage of FPR, are the words, “Place, Limits, Liberty.” I’m asking a question related to the middle word.

  35. I’m used to clarifying this, but Siarlys is a Welsh name, and it’s male, as am I. I’m also 55 years old if it matters. A woman at Good Clean Funnies List once had the idea I’m a 28 year old woman. John, I must honestly reply, point blank, yes, the Clean Water Act did result in substantial clean up of our waters. I’ve done a lot of both reading and writing about that law, and lived in many areas affected. It is true that if the administration in power doesn’t like the law, they can drag their heels on enforcement, as both Bush administrations did. (I suspect Clinton did too, but he was more devious and inconsistent about it. Bush 41 was also more subtle, trying to be “the environmental president” while pleasing his major donors. Bush 43 didn’t really give a hoot.) Once the government shows some incompetence, real or feigned, its easy to say we would be better off with no government involvement, but watch out if that ever happens. There are also little bureaucrats who indulge in tedious nonsense with the technical letter of the law — but then there are major polluters who CLAIM that is going on, to cover their tracks.

    As to the question of abortion, yes, there are going to be major contrasts if every local community can pass the law it desires. Some will be literally “have an abortion anytime,” some will literally impose the death penalty on both mother and doctor no matter the stage of pregnancy or the reason, and most communities will be all over the map in between. There is no way one community can lawfully impose penalties for an act committed outside its jurisdiction, particularly if the act was legal where it was committed. So women, and doctors, will travel or locate accordingly. Even under current law, there was a case in Nebraska where a state judge issued a restraining order forbidding a woman from leaving the county, until after her pregnancy came to term, but that was illegal; the wheels ground slowly enough she couldn’t get it overturned before delivery. It can’t be relied upon as a matter of process.

    But, when it comes to “gay marriage,” if there is no such thing in your local community, there is nothing to grant full faith and credit to. That doesn’t exist here, it just doesn’t. If we had it, you’d be entitled based on whatever community you got your license from, but we don’t. Imagine a state with no marriage laws at all, when a couple shows up from another state saying “we have this marriage license…” I’m sorry, there is no marriage in this state. If we did have such a thing, your license would probably be respected, but we don’t have such a thing.

  36. Siarlys,

    “I’m used to clarifying this, but Siarlys is a Welsh name, and it’s male, as am I. I’m also 55 years old if it matters.”

    Never met a Siarlys before. As to why I made the assumption that the name is feminine, I have no idea. Many apologies from this 59 year old guy. Is it pronounced like “siyer-lis”?

    Thanks for your dialogue.
    Have a manly day.

  37. In Welsh, si is pronounced like sh in English, as dd is pronounced like th in there while d is pronounced like d, w is a vowel, and ll has no exact English equivalent, but its sort of like tl, but holding the tongue against the upper teeth while blowing air out the sides. Siarlys is pronounced something like sharls, but there is an undefined short vowel between the l and the s. I really get a kick out of hearing Aryan nations types refer to “our Anglo-Celtic heritage,” since I know that Anglos and Celts have spent centuries burying axes in each other’s skulls. I once met a Welsh American from Texas who hated to be called an Anglo.

  38. 14th Amendment, Section 1.

    “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”.

    Yes it was passed in light of slavery but the language doesn’t speak to that subject.

    The last clause makes all DOMA laws unconstitutional. Denying homosexuals the right to civil marriage while granting it to heterosexuals contradicts the federal constitution.

    All the sophistry and spinning in the world cannot deny this simple fact.

  39. Stephen:

    The Supreme Court disagrees with you. See http://en.wikipedia.org/wiki/Baker_v._Nelson. Baker claimed that Minnesota marriage law violated, among other things, the Fourteenth Amendment (fundamental right to marry under the Due Process Clause and sex discrimination contrary to the Equal Protection Clause). The Supreme Court held that Baker didn’t even raise a substantial federal question.

    The Supreme Court can be wrong, but for reasons that you would blow off as sophistry and spin, this is not a slam dunk for your position.

  40. Stephen Harris quotes the Fourteenth Amendment accurately, and states with admirable insight that the language does not apply exclusively, or even primarily to slavery, or for that matter to race. It has probably done more good for people classified as “white,” in practical results, than it has for people classified as “black.” In my seldom humble opinion, the primary effect of the Fourteenth Amendment was to belatedly accept a proposition James Madison offered when the original constitution was written, and in his contributions to The Federalist Papers: a state government can be just as tyrannical as a federal government, and it is often a tyranny more difficult to overturn, because in a smaller area there is less political room to assemble the forces to do so. Thus, states, as well as the federal government, must be constitutionally restrained in the powers they may exercise over the lives of individual citizens.

    All that being true, it does not follow that it is unconstitutional to deny a marriage license to a same-sex couple. Roger Bennett has provided one reason to question the “equal protection of the laws” argument for same-sex marriage. As he says, the Supreme Court could be wrong, but its reasoning must at least be answered to sustain the interpretation of the Fourteenth Amendment you have offered. The Supreme Court of Massachusetts did not rely, in the Goodridge case, on the federal constitution. If they had, the United States Supreme Court would have had jurisdiction to overturn the decision. The Massachusetts majority relied solely on the state constitution, which makes the state’s highest court the final word, barring a constitutional amendment.

    Now here is the way I would argue this question, were I appearing for that purpose before either court (albeit I am neither a lawyer nor a member of the bar of either court, as a citizen of a republic I am entitled to hold and develop this opinion, although not to be the counsel formally arguing it):

    The Massachusetts 4-3 majority reasoned that the court had before it two demographic groups, heterosexuals and homosexuals, each desiring the benefits of an undefined status called marriage. Framed in that manner, it is obvious that indeed equal protection of the laws would mandate that each group be provided access to the desired status. However, that was faulty reasoning.

    First, a court should define its terms, and counsel arguing a case should submit proposed term definitions. Marriage: the union of one man and one woman as a single family unit. Then we take up the question, is any citizen deprived of the benefits of marriage? Every citizen is either a man, or a woman. Some men may style themselves, or be styled, homosexuals, but they are still men. Some women may style themselves homosexuals, but they are still women. If this were not so, the very concept “homosexual” would have no meaning. Is any man prohibited by law from entering into marriage with a woman, on the ground that homosexuals may not marry? No. A man who is definable as homosexual may still marry any woman willing to marry him. The law takes no notice of his (or her) sexual orientation. Accordingly, nobody has been deprived of equal protection of the laws. IF homosexuals were barred by law from marriage, the proper remedy would be to DELETE from the statute law, any phrase saying “homosexuals may not marry.”

    What the plaintiffs in Goodridge really wanted was to REDEFINE what the structural framework and definition of marriage IS, to include a wider variety of combinations that men and women might wish to enter into. But, just because some men, and some women, want to enter into a union different from marriage, as marriage has been defined since long prior to 1776, let alone 1787-1788, does not mean they have been denied equal protection of the laws. Heterosexuals may not marry a person of their own sex, any more than homosexuals may, not because it is prohibited, but because it would not be a marriage.

    I might add that I voted against my state’s “defense of marriage” amendment, because I consider it entirely unnecessary, and I similarly oppose the federal “Defense of Marriage Act,” because it concedes what does not need to be conceded, then constructs dubious defenses against what would be inevitable. I wouldn’t waste much time objecting if my state legislature provided some sort of recognition to same-sex couples. But it is not an equal protection issue, and it is not a constitutional right.

  41. To say a man is man and a woman a woman is plainly obvious. And to say to say they may marry is also obvious. The whole issue, of course is who someone is allowed to marry. To only permit opposite sex marriage is arbitrary. Marriage is not for procreation or infertile couples would not be permitted to marry. If it is to provide stable homes for children, well, homosexual couples can and do provide homes just as stable as heterosexual couples. So, why the prohibition for gay couples? The only plausible reason is that some people are uncomfortable with gay persons. Someone’s social conditioning is not a good reason to permit discrimination.

    To exclude same sex marriage while while permitting opposite sex marriage is arbitrary and discriminatory.

    Telling homosexuals they can only marry people they have no natural attraction towards is very offensive and does indeed deny them equal protection of the law.

    There is no need to jump through verbal hoops. The issue is as plain as day.

  42. Stephen:

    “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.

  43. My dear Stephen, if the issue were as plain as day, then 99% of the people of Maine, California, and 33 other states would have voted overwhelmingly to grant marriage licenses to same-sex couples. It is “plain as day” only in your own mind, and that of your immediate allies, which doesn’t add up to a law. Absent such an overwhelming consensus, your argument is NOT that your desires are plainly and universally accepted by all. Rather, your argument is that there is a right fundamental to the plain meaning of the constitution, no matter what a majority of voters may think of the manner in which you choose to use that right.

    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.

  44. There are over 1,000 federal laws affecting marriage. Married same-sex couples do not have access to all those rights and responsibilities as married opposite-sex couples. They are not treated equally under the law. Either the federal government confers its benefits on all married persons or on none. The state can’t have it both ways.

    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.

  45. Stephen:

    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).

  46. Roger has pretty much said it all, but I must add one more time that when you claim a LEGAL status, you must address LEGAL precedent and argument. You can’t just shove it all aside to say “but I want what I want and its not FAIR.” 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. Such things do not exist. Such a legal status could of course be created, but that has nothing to do with equal protection of the laws. There is no individual who has any less option to marry than any other individual. Some individuals don’t want marriage. They are not required to enter into it. They want something different. The community may or may not be willing to officially recognize this distinct and different relationship.

  47. John, you asked for a definition; here’s one.

    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.

  48. Congratulations. Your side got SSM into Merriam-Webster.

    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.

  49. Make that “You have made no effort to show why Merriam-Webster definitions a(2) is not as arbitrarily limited as a(1).”

  50. Stephen, this could be a very interesting and mutually edifying conversation, if you were not persistently trying to find some way to say “See? So there.”

    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.

  51. Marriage, as a civil institution, does indeed change with the times. Some states (and several countries) have decided to expand marriage to include same-sex couples. And those states that have expanded marriage law have made all the rights and benefits that go with marriage available to all married couples.

    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.


  52. Siarlys Jenkins,

    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.

  53. Aaron, you are under several misapprehensions. That is what usually happens when any person begins with their desired outcome, then rewrites all available authority to support that desired outcome. I claim a certain level of impartiality on this question, since I don’t really care whether my state legislature does or does not pass a gay marriage law, and voted against my state’s constitutional amendment which effectively made it impossible to do so.

    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.

  54. Siarlys Jenkins,

    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.

  55. I wrote a lengthy and reasonably respectful response to Aaron. It hasn’t appeared here. When I tried to send it again, the software said “you already posted that.” Its true, I did, but its not here where Aaron can read it. If the moderator can find it, please consider letting it appear. If not, I’ll try to send again in a few hours or tomorrow. I copied to a text file.

  56. Next attempt:

    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.

  57. I’ve thought for a long time that the problem here is secular co-optation of the word “marriage,” which is a legacy of the Reformation’s relocation of spiritual authority from the Church to the state.

    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.

  58. Mark:

    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.”

  59. I don’t think same-sex marriage is that much more difficult. In fact I think it is easier than many other issues for the reason that family law is deeply state-based and that there are myriad dangers in a federal takeover of marriage law. The fact is that states are perfectly sorting out the rest of it via conflict of laws but once the feds intrudes, the trend will invariably be towards intervention in other areas until the states have no control at all.

Comments are closed.