Balkinization  

Monday, February 07, 2005

Constitutional theories of same-sex marriage

JB

This is a follow up to my previous post about the New York State case, Hernandez v. Robles, in which I argued that the trial court did not make the best possible arguments for its position. In order to explain why that is so, let me offer five different legal theories of why states cannot limit marriage to opposite sex couples. None of these theories is perfect; each has its strengths and weaknesses. Viewing them together one can see the choices that courts will have to make in upholding the rights of same-sex couples. My guess is that if the Hernandez case is upheld on appeal, the New York Court of Appeals will choose one of these five theories.

(1) Sex equality. It violates sex equality to tell a man he cannot marry another man when a woman could do so. It violates sex equality to tell a woman she cannot marry another woman when a man could do so. The ban on same-sex marriage makes an illegal distinction on the basis of the sex of the parties.

The advantage of this argument is that it does not call into question any state restrictions on marriage other than the sex of the partners, so it raises no constitutional problems about whether the state must now allow incest or polygamy. It is also premised on a category of state discrimination (sex discrimination) that is already well established as unconstitutional, so there is no need to create a new category of suspect classification or recognize a new fundamental right. The disadvantage of the argument is that it uses sex equality doctrine to uphold what most people would say is really discrimination on the basis of sexual orientation.

2) Sexual orientation discrimination. The ban on same-sex marriage discriminates against gays and lesbians in their choice of spouses.

The advantage of this argument is that it is completely honest about what the problem is; it avoids the misfit of the argument from sex equality noted above. It also poses no obvious problems for state prohibition of incestuous and polygamous marriages. Its major disadvantage is that most states have not held that state discrimination on the basis of sexual orientation violates the state constitution, nor is such discrimination currently illegal under the federal constitution (see below on Romer v. Evans). So litigants must first win on the suspect classification point before they can use this argument. There is also the argument that the suspect classification approach wrongly treats sexual orientation minorities as a single group like blacks or women, and it would be better if courts used doctrines that protect their individual liberty instead. (This is an argument for the due process approach described below).

(3) Irrational discrimination. Even if sexual orientation discrimination is not subject to strict or heightened scrutiny, one could argue that the ban on same-sex marriage violates the rational basis standard that all social and economic legislation must pass. This is the approach taken in Goodridge, the Massachusetts case.

The disadvantage of this argument is it's not clear why the state doesn't have a rational basis if courts must presume any set of facts that the legislature might have believed. For example, the legislature might have wished to wait until there was more evidence about the relative long-term stability and benefits of same-sex couples, fearing that expanding the definition of marriage so soon would lead to increased divorce and family litigation. (Remember, in this traditional rational basis argument, we're assuming no fundamental right is involved, so the only issue is whether we can come up with plausible reasons to justify the distinctions the legislature has made. This traditional rational basis test is not the Moreno/Plyler v. Doe/Romer v. Evans line of cases, which I discuss below).

(4) The ban on same sex marriage violates the rule of Romer v. Evans that laws passed out of animus at a specific social group or out of a bare desire to harm a politically unpopular group violate the rational basis test.

The advantage of this argument is similar to that of the other equal protection arguments, and unlike (2), it is based on a well established principle. The disadvantage is that the definition of marriage in New York (and thus the ban on same sex marriage) does not seem to have been based on anti-gay animus; it seems to be a relic of traditional ways of thinking. In Romer, Colorado passed a specific ordinance to exclude gays and lesbians. It is hard to argue that gays and lesbians were on the minds of the New York State legislators when they drafted their marriage licensing requirement, or that, even if they did think about gays and lesbians, they passed the law deliberately in order to harm them or punish them.

(5) The ban on same sex marriage violates a fundamental due process right to marry.

The advantage of this argument is that constitutional law already recognizes a fundamental right to marry, and there is no need to establish that sexual orientation discrimination is a suspect classification or a need to argue that sexual orientation minorities fall into a single group like blacks or women. The problem with this argument is that it begs the question about what the right to marry means. If due process is based on tradition, there is no tradition of legally recognized same-sex marriage in the United States so there is no constitutional protection. If the right to marry means the right not to have the state interfere with your existing marriage (this is the argument for the right of marital privacy in Griswold v. Connecticut), it does not protect the right of same-sex couples to marry. Finally, if the right to marry means the right to choose to marry whoever you want, (the argument made in Hernandez v. Robles) then the state violates this right when it bans incest and polygamy. After all, if the state has no business telling you whom you can and cannot marry, then presumably, you can marry your brother or sister, or you can marry several people at once. To make this third argument work you would have to find ways of showing that the state has a compelling state interest narrowly tailored for making incestuous marriage and polygamy illegal, but not a compelling state interest for banning same sex marriage.

I think that the best arguments are (1) and (2), although (2) requires creating a new suspect classification. Number (5), the due process argument made in Hernandez, is much weaker for the reasons stated above. Theory (3), the rational basis argument made in Goodridge, the Massachusetts case, is an implausible expansion of the rational basis test unless the court quickly follows up by making sexual orientation a suspect classification. In that case, the argument really is (2). (Something like this happened in the 1970s with sex equality law). Theory (4), based on Romer v. Evans, sad to say, is the least plausible theory under current law.




Comments:

This follow-up remains somewhat unconvincing.

Marriage sets forth a certain view of sexual roles in which a male and a woman join together, each bringing a particular part to the equation. Sex specific domestic law arises from this traditional view, thus the sexual discrimination argument is honest. The dishonesty comes from defenders of the traditional view, who make question begging definitional arguments.

Prof. Balkin apparently doesn't like the right to marriage argument, though it is loyal to federal precedent. Precedent that does point to various reasons why the right exists. Cases involving the right to marry a member of a different race, in prison, or with child support debts all dealt with the right to marry itself.

So why is applying it in this case so strange? Is it really hard to distinguish incest? [disease, coercion concerns, and the principle of marrying outside the tribe] What a trite issue! Yes, perhaps, more than rational basis is involved. So be it -- gender equality, right to marriage, etc. can handle a rational basis plus test.

Finally, I don't understand the stability issues. This proves too much. It would also disallow any gay individual to have custody of children, if s/he lives or perhaps even sees a partner. Many other unstable marriages are allowed -- there is no need to undergo a "stability" test when you marry someone. Also, allowing sodomy (protected in part to protect homosexual associational rights) promotes distability too.

I'd add that the courts haven't always supplied as loose of a standard of "rationality" as the professor suggests.
 

While I appreciate the political difficulties with (5), I don't see why those are legal difficulties. Either the state has a compelling interest in banning polygamy and incest, or it does not. If it does, it shouldn't be difficult for someone in this country of ours to spell it out. If no one can do so, it's probably because no compelling reason exists and the bans, in fact, "violate a fundamental due process right to marry."

On the political side, I'd worry about the reaction of the morality brigade to such a ruling, and I'd prefer a ruling that either wasn't so far-reaching or elucidated an actual compelling interest, but that strikes me as a political hope, not the basis for an unbiased legal judgement.
 

"Cases involving the right to marry a member of a different race, in prison, or with child support debts all dealt with the right to marry itself."

This is the question-begging Professor Balkin was referring to. Equal protection and Due Process are different. EP is forward-looking (some might say anti-caste); DP is backward-looking (based on tradition). All of the cases you mentioned involved heterosexual marriage. A black man and an Asian woman who marry are heterosexual. A prisoner and hiw wife are heterosexual. Child support debts for the children you produced by procreation are heterosexual child support debts. All of those cases support a tradition of heterosexual marriage: none of them demonstrate that there is a tradition of same-sex marriage in the country that is respected by the courts. The argument that marriage should apply to gays because gays are just as good as straights is an EP argument (1-4, not 5). That is the argument you are making. The reason why the Romer v. Evans argument is so weak has already been explained by Balkin. He happens to be right. You could read the case to confirm what he's said.

You know, the guy teaches at Yale for a reason.
 

There are those who teach in Ivy League law schools who would agree with the ruling of the judge here. Authority goes both ways. No matter. Supreme Court precedent, even alleged question begging SC precedent (and NY Appellate precedent for that matter) trumps the professor in the court of law.

The Lawrence Court explained how fundamental rights (due process) and equality ran into each other in many ways. A basic way is when you start making classifications of persons who enjoy fundamental rights, you run into problems, unless you supply compelling reasons for said classifications.

Also, I'm making several arguments: EP and DP. My beef is that the professor's rejection of each are problematic. If he doesn't like precedents, so be it, but the supposed inability to separate incest from same sex marriage is beneath him.

I'd add after reading the NY opinion, his account ignored various things special to NY. (1) The state did not challenge the stability of the couples (2) the state allows various special rights to same sex couples, including adoption (3) NY state precedent clearly protects a fundamental right to choose who you marry.

Also, Prof. Balkin supports Lawrence. Justice Scalia is pretty smart too -- the NY opinion uses his own words to back up her opinion. Again, it doesn't matter if you don't like the precedents. As a lower court judge, it is her role to follow them.
 

Neither 1 or 2 (the arguments for equal treatment) can succeed because they assume that the object of the legislation is to confer benefits on adults, when in fact the object is to confer benefits on children. Of course state sanction for marriage is an imperfect way to confer benefits on children, but policies don't have to be perfect, and in any case is not for courts to judge. FDIC was also designed to support children. The fact that it inadvertently supported the crack addictions of irresponsible parents did not imply an obligation on equal protection grounds to support everyone's crack addiction. It is a reasonable judgment that children can be supported by supporting heterosexual marriage. This judgment is not vitiated by the fact that some heterosexual couples do not have children, and that some homosexual couples do.

As for 4 and 5, about a right to marry, no way. People have a right to be tolerated, if they are not harming others. No one has a right to approval, which is exactly what marriage is about (except for the third party benefits, designed to support childbearing). This has always been the problem with the homosexual activists. They are not content with tolerance. They want approval, pushing an agenda of approval even in public elementary schools. This is why homosexual marriage is likely to be a losing issue forever. Tolerance has been granted. Approval is a whole other story. There is no fundamental reason it should ever be granted, and with homosexual activists being constantly obnoxious, demanding what is not a right, approval is unlikely to be forthcoming in the foreseeable future.
 

There is not a "ban" per se on homosoexual marriage. This is a false notion that I think helps perpetuate a myth that people are "denied a right". The difference is that the state will not recognize as a valid contract a marriage between two members of the same sex. And that is wholly a different matter.

And in fact, there is no ban on homosexuals marrying. They must marry someone of the opposite sex. Of course, that contradicts the logic of marriage, but reinforces the idea that there is no ban. A ban would be such that New York, or my home state California, has on guns. In Cali, I cannot lawfully own an Ak47, and should I be found in possession, I will go to jail. (You know a good lawyer?!!)

As I wrote here:
"For all the rhetoric about equal rights and same-sex marriage, the arguments without exception are still selfish. It's all death benefits, property transferral, hospital visitation rights, etc. It's all me me me. I want this, I want that. Marriage isn't about me, it's about we, and now, it's completely about they, the children."

And that is really the crux of the matter, that property rights, etc. are being denied. And while there is no basis or authority on the part of the state to prohibit consensual relations, there is likewise no right to demand state sponsored recognition. The former simply acknowledges the limits of state power, the latter represents an abuse thereof.
 

I'm no legal scholar, and prefer to think in simple principled terms. So at the risk of sounding foolish in front of such an intelligent group:

The problem with #1 is that it validates a "separate but equal" status among the sexes. Whereas marriage is and has always been an integration of the sexes. Procreation is not the beginning and the end of marriage, but is more than enough to establish that separate cannot be equal.

The problem with #2 is that sexual orientation is irrelevant: gays can and do marry members of the opposite sex, under the same terms as heterosexuals, asexuals, and omnisexuals. Even in Massachusetts, no one bothers to ask same-sex couples whether or not they are indeed homosexual. I personally would be much more inclined to grant some level of accomodation to homosexuals, so long as they were reserved soley for gay people. SSM is NOT the same thing as "gay marriage".

It is an unfortunate fact for advocates of SSM that all persons are treated equally with respect to marriage. This is so regardless of race, religion, gender, handicap, or even sexual orientation.
 

I'm hopin they let em gomersexuals marry one another, cause maybe then I kin marry my faverite rhode island red hen! She shore is purty!
 

In 1948, the California Supreme Court struck down the state's law against interracial marriage. A mixed-race Catholic couple argued successfully that the state, in denying them the right to marry, denied them the right to participate fully in the sacraments of their church. Ministers of various American churches, including the Unitarian Universalist Church, have performed marriage ceremonies for same-sex couples. The legal theory I propose for your evaluation is that it is an unwarranted intrusion of government into the religious sphere to say that some churches perform valid marriage ceremonies but others do not.

Some people argue that homosexuality, unlike race, is a matter of choice, so no analogy exists between same-sex marriage and interracial marriage. There is no proof of the claim that homosexuality has no genetic basis whatever, but that is irrelevant to this argument based on freedom of religion.

A court need not extend this religious argument to include legalization of incest or polygamy such as found in Genesis XX or the Koran. The court could instead see a legitimate state interest in protecting the health and well-being of children that incestuous or polygamous relationships might produce.
 

It seems that all of these possible theories assume a particular definition and purpose for marriage. If you argue that marriage was created as a state institution to facilitate the birth and raising of children, none of them work. While homosexuals may be allowed to adopt in NY, they cannot have children with each other - if such couples must resort to sperm donors, it would seem that the state should encourage them to marry the sperm donor, not some unrelated person. If you argue that the economic benefits were put in place to offset the cost of children, those are no longer relevant in terms of discrimination either. The problem with proponents of same-sex marriage is that, to have ANY argument whatsoever, they must first assume an entirely different definition of marriage than what has been traditionally accepted in this (and just about all other) human societies.
 

"If you argue that marriage was created as a state institution to facilitate the birth and raising of children, none of them work." The state does not deny marriage rights to people who are unwilling or unable to have children. No one asks a man seeking a marrige license if he has had a vasectomy. No one asks a woman applying for a marriage license if she has had a hysterectomy or if she has passed menopause (however evident her advanced age may be). A court might grant that the primary purpose of marriage is the protection of children without agreeing that this is sufficient reason to restrict marriage to fertile couples or concluding that no other adequate purpose exists for marriage.

The argument that marriage is state-created defeats the other arguments only if it as accepted. Marriage as a civil institution is a product of government; marriage as a religious institution is certainly not. The question I raised is whether the government may legitimately recognize the marriage sacrament of some churches but not of others.

Religious officiation at homosexual unions is not common but it is becoming less rare. Some Methodist and Episcopalian clergy perform "rites of union with all couples, regardless of gender."
 

The religious freedom arguement is interesting. I don't see how you could possibly seperate a right to gay marriage from a right to polygamy under this agruement though.

That may be all well and good, but certainly many religions support Polygamy and of course our government cracked down hard on that at one point against the Mormons.
 

All five SSM arguments on Balkinization become embarassingly beside the point when marriage is seen as a right to procreate, and that right is denied to same-sex couples because their procreation would be "completely unethical":

"1. It violates sex equality to tell a man he cannot marry another man when a woman could do so." Not when it is "completely unethical" for a man to attempt to proceate with a man but completely ethical for him to attempt to procreate with a woman.
"2. Sexual orientation discrimination." Eggs and sperm don't care what the orientation of their maker is, nor does the ban on non egg and sperm procreation.
"3. Irrational discrimination." No, it's completely rational, because the scientists themselves say it would be completely unethical to attempt this in humans. Just think of the other 9 mal-formed mice that couldn't make it to adulthood, not to mention the 371 that couldn't make it to birth. It's irrational to allow people to try it on people.
"4. animus at a specific social group" You can't claim animus if the ban is completely rational, to protect the people being created.
"5. violates a fundamental due process right to marry" That fundamental right is the right to attempt procreate found in Skinner, but naturally, not using a completely unethical technology (or else, the court could have said that Skinner could still conceive with technology someday). People have a fundamental right to be straight and marry someone of the other sex, and gay marriage actually encroaches on that right.
 

The current controversy is NOT about marriage - marriage is a it spiritual and personal quality that the state merely acknowledges, it does not bestow. I know many married gay couples - was even chastized by the pastor at a church for calling it a committment ceremony - 'Its a wedding" I was told.

No, the current controversy is about equal license to the secular civil contract that states issue to foster and support marriages. The question is not 'should we let gay citizens marry?' but rather 'why are they being excluded from access to the civil contract when other married married are not?' The contention resolves to an equal access issue to an existing civil contract and if the reasons for exclusion are reasonable.

When viewed from a contract point of view all problems are solved. The contracts issued by the state are designed for only two signees in an exclusive contract - the statutes and properties of the contract will not function if there are more than 2 signees or if multiple contracts were licensed to the same person. An argument centered around equal right to license does not open the door to any request that requires the contract itself to be massively changed.

If citizens are allowed to have equal license to the contract regardless of the gender of their cosignee all citizens will have access - equal access will have been achieved. The question whether the contract must be reworked to support other kinds of marriages too is a very different issue and would be supported and refuted by different arguments entirely.

To address poligamy specficially the poligamy most Americans are familiar with is really serial male bigamy - the man is married to multiple wives, but the wives are only married to the man, not to each other. The man having more than one spouse would obviously 'break' the current civil contract of marriage - all statues referencing the 'spouse' would go from crystal clarity to virtually useless if there were more than one. Even more importantly in this situtation is the state would be institutionalizing unequal rights for citizens. By custom and convention only the man would be engaged in multiple contracts - The man becomes unavailable for whatever reason and all the wives suffer, a single wife leaves, only she does so. On this single fact alone a very compelling argument could be made to disallow serial bigamy as a civil contract on constitutional grounds of equal rights for all citizens.

So the question comes down to why aren't all citizens with equal need being allowed equal license to a civil contract issued by the state? Court after court has discovered that no compelling reason can be found.
 

>why aren't all citizens with equal need being allowed equal license to a civil contract issued by the state?

Because attempting to combine the gamates of two people of the same sex is way too risky for the person being created. But all marriages have a right to procreate, you can't have a marriage without that right. After the ban on non-egg and sperm procreation, only male-female couples will have the right to marry and procreate.
 

>Because attempting to combine the gamates of two people of the same sex is way too risky for the person being created. But all marriages have a right to procreate, you can't have a marriage without that right.

doesn't fly - the civil contract of marriage doesn't have anything to do with procreation. Men with vasectomies and women with hysterectomies are allowed to license the contract. In most states that allow first cousin marriage the signees can only get license if they prove they CANNOT procreate. Men in prison who will never engage in procreative act with their cosignees have the right to license the contract as per the SCOTUS.

If the signee's ability to procreate between themselves is a deal breaker than many married signees should never have been given license to do so. You can't give a pass to some without giving a pass to all.
 

"A basic way is when you start making classifications of persons who enjoy fundamental rights, you run into problems, unless you supply compelling reasons for said classifications."

My point was not: Professor Balkin teaches at Yale, so he must be believed. My point was: Professor Balkin teaches at Yale, so the skepticism you have toward his distinctions is unfounded. He hasn't said anything invalid, and for you presume that he is wrong because you don't like the sound of it is arrogant and ignorant. You're ignoring that he's a constitutional law scholar who usually gets these issues right. You, on the other hand, do not. For instance, you keep mixing up DP and EP in a way that is WRONG. Suspect classifications apply under the Equal Protection Clause. An analysis of tradition under the Due Process Clause doesn't require justification under the Equal Protection Clause, and it doesn't require a compelling interest/narrowly tailored analysis under strict scrutiny, which is an Equal Protection standard. As I said before, you keep making EP arguments and conflating them with DP arguments. You are wrong. Balkin separates them for a reason: that reason is he knows what he is doing. Presumably, that is why he was hired to teach at Yale. You are perhaps right that other scholars might disagree with him, but they would not argue, as you have, that strict scrutiny is a test under the Due Process Clause. That is just plain ignorant.
 

"The Lawrence Court explained how fundamental rights (due process) and equality ran into each other in many ways."

The Lawrence court also did not claim the rights at issue there were fundamental, and said its decision had nothing to do with gay marriage. So appealing to Lawrence is completely worthless here.
 

"I'd add after reading the NY opinion, his account ignored various things special to NY. (1) The state did not challenge the stability of the couples (2) the state allows various special rights to same sex couples, including adoption (3) NY state precedent clearly protects a fundamental right to choose who you marry."

If NY truly supported "a fundamental right to choose whom you marry", then incest, bestiality, and polygamy would already be constitutionally protected in NY. I can choose to marry my brother, a dog, or ten dwarves. Therefore, you must be mis-interpreting the law in NY when you phrase it so broadly.

The reason why Balkin may have missed some things (other than the fact that you mis-interpreted what you read) is because he is talking about the federal constitution. It is true that NY state can provide more "equal protection" or more "civil rights" to whomever under its own constitution and that is a state law issue. Balkin did not go into that. Balkin simply said that as far as the rationales threading through precedent regarding the federal constitution go, this case was not on-point. Now, it is possible that the NY constitution clearly provides more protection than the federal constitution; but if that were the case then this opinion would not have gotten any news attention!

Given that this IS judicial activism, it makes little sense that it not be well crafted! As a matter of judicial craftswomanship, the damn opinion could have actually raised troublesome issues that recur through the precedent and addressed them. Contrary to what someone else on here said, providing a thoroughgoing rationale for the holding of an opinion (and providing future lawyers or lawmakers with legitimate reasons to bring to the court to uphold laws) is not the same as posing hypothetical future cases and prognosticating outcomes for those factual situations. It is not dicta; it is competent adjudication. I think Balkin's point is that the opinion is incompetent.
 

>doesn't fly - the civil contract of marriage doesn't have anything to do with procreation.

Of course it does. Virginia was attempting to keep the Lovings from procreating. SCOTUS cited Skinner's right to procreate to say that the Lovings had a basic civil right to marry. Marriage and procreation rights were synonymous to the court in 1967 - has anything changed?

>Men with vasectomies and women with hysterectomies are allowed to license the contract.

Right, because they have a right to attempt to procreate.

>In most states that allow first cousin marriage the signees can only get license if they prove they CANNOT procreate.

Exactly - because their procreation would be unethical, same as same-sex procreation would be. They can't get married because they don't have a right to procreate. Those "sterile cousin" exceptions were made before IVF and are anachronistic. Do the cousins have a right to attempt IVF? How do you prove that IVF would fail?

>Men in prison who will never engage in procreative act with their cosignees have the right to license the contract as per the SCOTUS.

I think it does give them the right to procreate, though, right? Just not until they get out?

>If the signee's ability to procreate between themselves is a deal breaker than many married signees should never have been given license to do so. You can't give a pass to some without giving a pass to all.

Did you click on the link to Kaguya? So it isn't a question of ability, in this age of technology, it is a question of RIGHTS. Just like the Lovings supposedly didn't have a right to procreate, so the state didn't recognize their marriage and arrested them for sleeping together. But it isn't just discrimination to ban SSP, there are real problems with it. Here's the proposed ban.
 

Johnny said "But all marriages have a right to procreate, you can't have a marriage without that right." That is generally true but misleading. (There are a few extraordinary circumstances under which the state may prevent married people from procreating, such as one of the partners being in prison.) Marriage does not create a right to procreate. Unmarried people also have that right. That is one of the rights "reserved to the people." As you can see from the rates of illegitimate births, many unmarried people exercise that right and they do so with legal impunity. To promote the well-being of children, same-sex marriage is insignificant compared to problems proceeding from adultery, premarital sex, divorce, welfare and divorce court policies that marginalize fathers, and these illegitimate births.
 

>...extraordinary circumstances under which the state may prevent married people from procreating, such as one of the partners being in prison.

That's silly, being in prison prevents lots of things, I think prisoner's free speech rights are curtailed a little, aren't they? Their right to peacably assemble? To own guns? And, the court specifcally referred to artificial insemination being an option if conjugal visits are not allowed.

>Marriage does not create a right to procreate. Unmarried people also have that right.

No, not really. My state (MA) still has fornication and adultery laws, and the only reason we repealed illegatimacy laws was because they punished the children, not because unmarried procreation became legal. It is simply not prosecuted today, but that didn't change the rights that marriage grants. Like, if we stopped prosecuting driving without a license, it wouldn't mean that a drivers license didn't give you a license to drive.

>That is one of the rights "reserved to the people." As you can see from the rates of illegitimate births, many unmarried people exercise that right and they do so with legal impunity.

Only because we didn't want to punish unwed mothers or their children. And regardless, once we ban non egg and sperm procreation, it will mean that same-sex couples don't have the right to procreate. And a marriage without the right to procreate is not a marriage at all.
 

From Zablocki v. Redhail, 1978:
"And, if appellee's right to procreate means anything at all, it must imply some right to enter the only relationship in which the State of Wisconsin allows sexual relations legally to take place." This was true in Loving too: if procreaion didn't require marriage, then marriage wouldn't be the basic human right that SCOTUS says it is.
 

>Johnny: "My state (MA) still has fornication and adultery laws, and the only reason we repealed illegatimacy laws was because they punished the children, not because unmarried procreation became legal."

From the Richmond Times-Dispatch, January 14, 2005: "The Virginia Supreme Court ruled unconstitutional today the state law that makes it illegal for nonmarried people to have sex. The court said there is 'no relevant distinction' between the Virginia statute outlawing fornication and the Texas sodomy law the U.S. Supreme Court struck down in 2003." From this I conclude that any remaining state laws against fornication will not survive much longer, not even in Massachusetts.

> Johnny: ". . .once we ban non egg and sperm procreation, it will mean that same-sex couples don't have the right to procreate."

Sometimes a pair of lesbians will ask the brother of one of them to be a sperm donor. The resulting child will be the son or daughter of one of the women and the nephew or niece of the other one. Sometimes a pair of male homosexuals will find a woman willing to bear a child for one of them to be raised by both men. Procreation can take place within a homosexual union in this way or some other, granted of course that it takes the participation of a third party. Your hypothetical ban on procreation that uses two ova or two sperms will not destroy this right to procreation.
 

>doesn't fly - the civil contract of marriage doesn't have anything to do with procreation.

>Of course it does. Virginia was attempting to keep the Lovings from procreating. SCOTUS cited Skinner's right to procreate to say that the Lovings had a basic civil right to marry. Marriage and procreation rights were synonymous to the court in 1967 - has anything changed?

No that was their rationalization for the marriage contract proscription which the court struck down. That many people marry and procreate, or that the state expects people who procreate to marry in no way says that all those that marry must procreate.

>Men with vasectomies and women with hysterectomies are allowed to license the contract.

> Right, because they have a right to attempt to procreate.

As do the same gender couples with the same degree of potential success.


>In most states that allow first cousin marriage the signees can only get license if they prove they CANNOT procreate.

>Exactly - because their procreation would be unethical, same as same-sex procreation would be.

No its not due to ethics it is due to genetics. What you seem to be missing is they have the right to marry for whatever reason they aren't allowed to procreate.

> They can't get married because they don't have a right to procreate. Those "sterile cousin" exceptions were made before IVF and are anachronistic.

NOt at all - we aren't talking passive infertility, we are talking absolute sterility.

> Do the cousins have a right to attempt IVF?

Of course they can since by the stipulations of their license they are the only ones proscribed from procreating. Someone else's genetic material wouldn't be even relevant. Any limitation on the closeness of relations for the genetic material donors is regulated by the ethics of the IVF provider. Shoot a regular couple could try IVF with a close relative of the opposite partner and have the same situation. Just further examples of how any attempt to tie license of the civil contract with procreation is silly and a transparent attempt to just exclude some citizens from access with animus.


> How do you prove that IVF would fail?

Well considering that either one or the other or both are incapable of producing genetic materials by the licensing restrictions of their civil contract, it would be irrelevant - they would not be procreating. In vitro fertilization using others genetic materials is not in violation of their agreement. And them using some future technology to transform non-gamete material into that suitable form for a mixed genome conception would be no differernt than the IVF ethical quandry of using one spouse's close relative for their reciprocal genetic donor. This again shows the futility of trying to tie licensing the civil contract to a mandate for procreation.

>Men in prison who will never engage in procreative act with their cosignees have the right to license the contract as per the SCOTUS.

I think it does give them the right to procreate, though, right?"

No as derived from Zablocki:

"Yet, the hallmarks of the marital relationship to which the inmates and their intendeds aspired, are not linked to a capacity to procreate. It is to a non-coital relationship but one that was a supportive, committed, spiritually significant marriage with government benefits and property rights that the Supreme Court deemed them to have a fundamental right." Judge William Downing

>Just not until they get out?

No reason to think they will ever get out.

>If the signee's ability to procreate between themselves is a deal breaker than many married signees should never have been given license to do so. You can't give a pass to some without giving a pass to all.

> Did you click on the link to Kaguya? So it isn't a question of ability, in this age of technology, it is a question of RIGHTS.

I agree - but since licensing of the civil contract is not necessarily tied to the ability to procreate it is immaterial. The same technology that would allow two sterile opposite sex cousins to procreate would also allow 2 same sex individuals to, both would be banned by this entry of your reference:

"Prohibit attempts to conceive a child by any means other than the union of egg and sperm."

Accepting that we are back to the fact that opposite gender first cousins are specifically allowed license to the civil contract as long as one or the other is sterile. No procreation is possible between the 2 of them just as it isn't between two same gender married citizens. Allow them or any sterile citizen to marry and your position become untenable , if you allow one you have to allow the other.

There is no requirement to procreation tied to the civil contract. Many within the contract do procreate, the state can require those that procreate to be within the contract, but no state requires those in the contract to procreate or even to be able to potentially procreate. If this were true there would be no brides who have had hysterectomies, no grooms who have had radical orchectomies.

Face it, this dog won't hunt, this bird won't fly, or whatever homily you want to toss in there.
 

"no rational basis"..."no relevant distinction"

Am i the only one here who finds if fascinating how quickly we seem to have found a constitutional right to fornication???

Am i the only one here who fears the long-term consequences to a nation that is shackled by such a constitution?
 

Accepting that we are back to the fact that opposite gender first cousins are specifically allowed license to the civil contract as long as one or the other is sterile. No procreation is possible between the 2 of them just as it isn't between two same gender married citizens. Allow them or any sterile citizen to marry and your position become untenable , if you allow one you have to allow the other. Ok, lets go one step further with this one, because i've never seen it done in 2 years of following this debate closely:

If two sterile cousins ARE allowed to marry, then under any same-sex marriage regime (naturally sterile), two same-sex cousins will also be able to marry. However, two normal opposite-sex cousins will not -- because they are not "naturally" sterile. Instantly, you've created a situation where couples are truly being descriminated against -- not because they cannot procreate -- but because they can! The only solution is to declare incest a constitutional right!

You said it yourself, BVB: "if you allow one, you have to allow the other."

(PS: Prof. Balkin, congrats on a great thread! I'd install a paypal link soon if i were you! :)
 

"no rational basis"..."no relevant distinction"

> Am i the only one here who finds if fascinating how quickly we seem to have found a constitutional right to fornication???

No what was found was the right of citizens to be free from intrusive government interference in basic human features. The government can no more tell people they can't have consensual sex than they proscribe them from breathing, eating or any other innate human need.

> Am i the only one here who fears the long-term consequences to a nation that is shackled by such a constitution?

Only if you think that the citizen should serve the government and not the other way around. You aren't being told you MUST fornicate, you are just being told the government has no business deciding for you. You get to decide - scary bit of responsiblity for some, and scary for those who don't trust their fellow citizens. But in the end, a government that thought it could regulate such things would have to go.
 

Marty nice attempt to put the shoe on the other foot but no dice. The proscription against first cousin's procreating is due to genetic concerns, not rights. As such it doesn't matter why you are unable to to procreate, it still gives all first cousins the same rights with the same restrictions for the same reasons - no discrimination occurs regardless of their gender combinations.

Oh and as an aside there are first cousin groups trying to get the restrictions lifted because modern genetic knowledge, according to them, shows there is no significant genetic risk since only 1/8 of the genome is potentially shared. They point to those couples with known genetic dominate diseases that are allowed to marry and procreate even with 50% risks of passing on the disease to their children. Compelling argument *IF* the reason society should proscribe first cousin marriages is strictly genetic.

My personal opinion is that the proscription against close relatives marrying is more social - these are people who mingle during childhood extensively, more so in past generations, and one does not want childhood family interactions to become mate hunting grounds at the onset of adolescence. Britain has a clearer code on this than the US with marriage proscriptions based on how step relatives are raised - raised together, can't marry - raised apart, not proscribed.
 

>"The Virginia Supreme Court ruled unconstitutional today the state law that makes it illegal for nonmarried people to have sex.

I think they did that just for a laugh, in order for the Supreme Court to overrule it once and for all.

>The court said there is 'no relevant distinction' between the Virginia statute outlawing fornication and the Texas sodomy law the U.S. Supreme Court struck down in 2003." From this I conclude that any remaining state laws against fornication will not survive much longer, not even in Massachusetts.

Ha. Of course there's a difference between sodomy and sexual intercourse. Do I need to explain it? hint: you and I didn't get here because of sodomy.

> Johnny: ". . .once we ban non egg and sperm procreation, it will mean that same-sex couples don't have the right to procreate."

>Sometimes a pair of lesbians will ask the brother of one of them to be a sperm donor.

Sometimes one single woman, or even three or four lesbians, will ask the brother of one to be a sperm donor. What's yr point? The legality of sperm donation is not what we are talking about. I think it should be banned eventually, but the egg and sperm law won't ban it.

>The resulting child will be the son or daughter of one of the women and the nephew or niece of the other one. Sometimes a pair of male homosexuals will find a woman willing to bear a child for one of them to be raised by both men. Procreation can take place within a homosexual union in this way or some other, granted of course that it takes the participation of a third party.

And it's an egg combined with a sperm. That would all be as dubiously acceptable as it is now.

>Your hypothetical ban on procreation that uses two ova or two sperms will not destroy this right to procreation.

It's a little more than just hypothetical, it's been recommended to Congress by the President's COuncil on Biothics. Yes, Congress has to wake up and pass it, but they probably will someday, and it will mean that only opposite sex couples have a right to combine their gamates, which is exactly what marriage licenses.
 

>..?..That many people marry and procreate, or that the state expects people who procreate to marry in no way says that all those that marry must procreate.

All those that marry have a license to ATTEMPT to procreate (ie, have sex, or do whatever it takes - IVF is just a new position as far as the public is concerned).

>>>Men with vasectomies and women with hysterectomies are allowed to license the contract.

>>Right, because they have a right to attempt to procreate.

>As do the same gender couples with the same degree of potential success.

No, same-gender couples would be doing somthing compltely unethical if they attempted to procreate. THe success rate is less than 1%, and even that one mouse is probably not normal in ways they just did not detect yet. (and what do you mean "the license to contract"? They have to contract to get the license to have sex. THat's like saying that a driver's license is a license to take the driver's test and the eye test - no, those are just the obligations and responsibilities that accompany the license to drive.)

>No its not due to ethics it is due to genetics.

Mainly, it's unethical because of genetic problems, but it's unethical for other reasons too.

>What you seem to be missing is they have the right to marry for whatever reason they aren't allowed to procreate.

I said I think those laws are anachronistic and misguided. Today, couples can use advanced medicine to restore their health to be able to procreate.

>>Do the cousins have a right to attempt IVF?

>Of course they can since by the stipulations of their license they are the only ones proscribed from procreating.

No, I mean with each other. Do those cousins, in those states that allow it (which ones) have a right to attempt IVF, to procreate together? I bet those states don't grant "sterile cousin" marriages any more, because there's no way to prove they cannot procreate.

>Someone else's genetic material wouldn't be even relevant. Any limitation on the closeness of relations for the genetic material donors is regulated by the ethics of the IVF provider.

hahaha, that's funny. I want my government to regulate profit and fame driven IVF providers.

>Shoot a regular couple could try IVF with a close relative of the opposite partner and have the same situation.

Same situation as what? I'm talking about banning non egg and sperm procreation.

>Just further examples of how any attempt to tie license of the civil contract with procreation is silly and a transparent attempt to just exclude some citizens from access with animus.

It has nothing to do with hating people. It would be unsafe to combine two eggs or two sperm.

> How do you prove that IVF would fail?

Well considering that either one or the other or both are incapable of producing genetic materials by the licensing restrictions of their civil contract, it would be irrelevant - they would not be procreating.

Medicine could cure them. I don't know how you know that they aren't capable of procreating. Even same-sex mice are capable of procreating, though it took over 450 embryos and 370 pregnancies, etc...

>In vitro fertilization using others genetic materials is not in violation of their agreement. And them using some future technology to transform non-gamete material into that suitable form for a mixed genome conception would be no differernt than the IVF ethical quandry of using one spouse's close relative for their reciprocal genetic donor. This again shows the futility of trying to tie licensing the civil contract to a mandate for procreation.

SSP is way way way more risky than near-relative procreation. IVF is basically a sex position, it didn't change anything about the fertilization process. SSP introduces imprinting issues and major unknowns. You can't even perfect it on chimpanzees or pigs, humans are going to have different risks and it will always be unethical.

>Who is Judge William Downing? The Zablowski case specifically listed the possibility of consummation as one of the four elements of marriage.

>>Just not until they get out?

>No reason to think they will ever get out.

Are you sure you're a liberal ;-)

>If the signee's ability to procreate between themselves is a deal breaker than many married signees should never have been given license to do so. You can't give a pass to some without giving a pass to all.

It's the huge risk to any surviving children of their attempt to procreate that is the deal breaker. Today, everyone has an ability to procreate. Cloning and same-sex procreation, and all forms besides combing an egg and sperm, are unethical.

>> Did you click on the link to Kaguya? So it isn't a question of ability, in this age of technology, it is a question of RIGHTS.

>I agree - but since licensing of the civil contract is not necessarily tied to the ability to procreate it is immaterial.

EVERY COUPLE that has ever married has had the right to attempt to procreate. Privacy means they can use IVF or other legal technologies. Publicly same-sex couples wouldn't be able to use legal technologies.

>The same technology that would allow two sterile opposite sex cousins to procreate would also allow 2 same sex individuals to, both would be banned by this entry of your reference:

"Prohibit attempts to conceive a child by any means other than the union of egg and sperm."

Sterile people usually have eggs and sperm in their bodies, but have some reason why they don't get to meet and do their thing. IVF and other forms of medicine can sort of heal them. A man and a woman have a right to restore their health and attempt to procreate. Being a man is not a health problem, the other person you want to procreate with is just also a man.

>Accepting that we are back to the fact that opposite gender first cousins are specifically allowed license to the civil contract as long as one or the other is sterile.

What states? Do they still do this now what IVF is around? I think these laws were just short-sighted "who cares, let them marry" laws, and weren't intended to strip procreation rights from marriage.

>No procreation is possible between the 2 of them just as it isn't between two same gender married citizens.

Never say "not possible" today.

>Allow them or any sterile citizen to marry and your position become untenable , if you allow one you have to allow the other.

All we would do is ban non egg and sperm procreation. Every man has a right to attempt to combine his gamate with a woman's gamate, even if he might not be able to, even if they have to use IVF.

>There is no requirement to procreation tied to the civil contract. Many within the contract do procreate, the state can require those that procreate to be within the contract, but no state requires those in the contract to procreate or even to be able to potentially procreate.

MArried peoiple have a right to procreate, not an ability.

>If this were true there would be no brides who have had hysterectomies, no grooms who have had radical orchectomies. Face it, this dog won't hunt, this bird won't fly, or whatever homily you want to toss in there.

THose brides have a right to attempt to combine their gamates just like everyone does. But just not with another gamate of the same sex, or a different species, or with added genes, etc.
 

1 - "The ban on same-sex marriage makes an illegal distinction on the basis of the sex of the parties." Do you think Justices Ginsburg and O'Connor will discuss this over the urinals at the 'public' toilet in their courthouse?
2 - "Sexual orientation discrimination... poses no obvious problems for state prohibition of incestuous and polygamous marriages." So a bisexual still cannot have a husband and wife simultaneously? Or is bisexuality not an orientation. Maybe it's a sign of disorientation?
3,4,5 - "The ban on same sex marriage violates a fundamental due process right to marry." Can a man marry a machine? For just as our founders had no consideration for same-sex couples a quarter-century ago, so today we do not consider the prospects of spouses from 'Blade Runner' or 'A.I.' There are all kinds of banned marriages. Every married person is banned from marrying.
 

oops - came back to take a look... that should be a quarter of a millenium (above) - not 'century' ... duh.

Incidentally, now that I'm here, the whole marriage/procreation discussion is, well, quaint. When two octogenarians marry in a senior center, they don't care about their reproductive rights, and neither does the state, and neither do you or I.
 

1. I’ll agree with you – simply intellectually dishonest to justify support for SSM on this basis, not fooling anyone.
2. I believe “sexual orientation” IS a suspect classification. But more on that in my “Big Picture Overview” below. I am piqued however by the Professor’s comment that “There is also the argument that the suspect classification approach wrongly treats sexual orientation minorities as a single group like blacks or women, and it would be better if courts used doctrines that protect their individual liberty instead.” I’d very much like to hear his further elucidation of that sentence beyond the due process argument in 5.
3. BINGO. There simply is not rational basis to exclude SSM. Any argument proffered by the legislature or opponents is essentially founded on intolerance. Throughout the responses on this blog can be found many specious arguments. Arguments to protect “heterosexual” marriage and children are totally unsupported by serious academic research (sure, you can find research sponsored by the hate-mongering Family Research Counsel and James Dobson, et al). Even our President suffers from this delusion, re-iterating a widespread misconception amongst conservatives that children do “better” when raised with a man and a woman in a heterosexual marriage. Rightly, the New York Times took issue with and debunked the President’s statement. But how disturbing that he held such ill-informed and unsubstantiated beliefs. One by one any argument that might be made as a rational basis can be refuted. But if you’re intolerant and morally opposed to SSM, through that perspective you will find it justifiable to prohibit SSM. But any reasoned thinker would not. Any true believer in tolerance, equality and equal rights for all men and women would not. I am disappointed that the Professor who identifies himself as a supporter of SSM would casually pass this off as though a court should give deference to what I think in every case would be a suspect and specious rationale and merely a mask for perpetuating innate prejudices that are founded more on religious traditions. If our government stands for anything, isn’t it the precept that the rights of the minority will not be trampled by the ill-formed and irrational prejudices of the majority and that the minority can expect a court to fairly redress those concerns?
4. The Professor’s analysis is spot-on.
5. Lastly - -yes, SSM should be guaranteed because it violates due process because the right to chose who you can marry IS fundamental. The Professor writes: “To make this third argument work you would have to find ways of showing that the state has a compelling state interest narrowly tailored for making incestuous marriage and polygamy illegal, but not a compelling state interest for banning same sex marriage.” Well, duh – yeah, exactly. And I think it can be done. I am however sorely disappointed that the Professor cannot distinguish between SSM and polygamy and incest (and what the hell, why not bestiality?) – It’s that old slippery slope argument, and really, aren’t you tired of it? I am. To equate a loving SS relationship with incest, underage relationships, etc. is patently offensive to all gays and lesbians. I really don’t think I need to belabor the point here, but I think incest and polygamy are easily distinguishable from SSM – and the state I think can offer no compelling reason to proscribe SSM. The arguments thrown out by the right to justify a prohibition, basically boil down to protecting family as an institution and children. And it’s BUNK. It’s dishonest. It’s unrealistic. It’s based on discrimination, religious intolerance and BIGOTRY – plain and simple. But for the Professor to throw his hands up and label this argument as weak shows he just didn’t put enough effort into thinking about it. I know he can do better.


Rawls states: “It is a reasonable judgment that children can be supported by supporting heterosexual marriage. This judgment is not vitiated by the fact that some heterosexual couples do not have children, and that some homosexual couples do.” I agree – as far as it goes. But the implied corollary is NOT TRUE; i.e., that to support heterosexual marriage you MUST be against same-sex marriage. There is no reasoned basis or scientific support for the proposition that the existence of SSMs will weaken, cheapen or threaten heterosexual marriages. The institution of marriage may be under assault – from poverty, education, diasporas of close-knit families, urbanization, and many other factors. But not SSM. If anything, I believe that recognition of SSM would support the institution and reaffirm it.

But more telling, Rawls continues: “As for 4 and 5, about a right to marry, no way. People have a right to be tolerated, if they are not harming others. No one has a right to approval, which is exactly what marriage is about (except for the third party benefits, designed to support childbearing). This has always been the problem with the homosexual activists. They are not content with tolerance. They want approval, pushing an agenda of approval even in public elementary schools. This is why homosexual marriage is likely to be a losing issue forever. Tolerance has been granted. Approval is a whole other story. There is no fundamental reason it should ever be granted, and with homosexual activists being constantly obnoxious, demanding what is not a right, approval is unlikely to be forthcoming in the foreseeable future.” THIS IS JUST BEING AN OLD-FASHIONED BIGOT. Trying to claim legitimacy under the ruse of pseudo-reasoned argument. And oh so tiring. As a gay man, I am not asking for special rights or approval. I am asking for the same rights that heterosexual people enjoy in building a home and a family (and yes, a family may or may not include children, adopted or otherwise). These are civil contract rights. They have nothing directly to do with child-bearing and pro-creation (any argument to recast the SSM issue by focusing on pro-creation is a total red-herring; pro-creation is never a requirement or purpose of any marriage, so get rid of that line of thinking. And historically, its basic precept had everything to do with property).

In the simplest line of reasoning, why should I as a gay man not be able to choose my life partner, get married and enjoy the same tax, property, inheritance and other innumerable benefits conferred by state and federal statues to protect my family? Isn’t that equal treatment under the law? The right to choose our own family and be on the same footing as every other person as a citizen? I do not now have these rights -- Yet I am otherwise expected to fully support our country through the payment of taxes, etc. and be discriminated against by my government in this fashion? Please tell me the compelling state reason for this discrimination – because I CANNOT SEE IT.

And that last statement is telling. “I cannot see it.” But of course there are many who claim they can. Mostly found amongst the conservative, religious right. The most vocal being the evangelical Christians. But is it is a question of PERCEPTION.

I am told SSM is not deserving of protection and recognition because being gay is a “choice”. If that is your argument, were you to only walk a mile in my shoes. It is not a choice. It is an innate part of my being. And tens if not hundreds of millions of other gay people around the world would tell you this as well. While not specifically identified, scientific research points towards a genetic component. And throughout history attempts to convert and change a person’s sexual orientation have met with resounding failure. Even under dire threat of life and limb, individuals cannot change their sexual orientation. So do not tell me it is a choice. That is offensive, ignorant and bigoted. This is an argument that can only be made by a person who has not had to deal with the self-realization of their same-sex attraction in a society those views it as taboo.

I am told SSM is not deserving of protection and recognition because being gay is proscribed by the Bible and Christian teachings. But I do not (or so I thought) live in a theocracy. The Bill of Rights guarantees freedom of religion – and clearly the freedom from the imposition of religious beliefs of any kind. Using your religious beliefs to justify preventing my access to the many benefits conferred by a civil institution is just plain wrong. It’s un-American (or at least what I had always believed America stood for). The ability to marry my same-sex partner will not require that my marriage be recognized by any religious group. Only its civil status in the eyes of the government will be recognized. Individual religions will be free to come to their own conclusions regarding their recognition of SSM – as will I be free to join or not join such religions. But make no mistake. Marriage is a secular institution. To continue to use religious arguments to justify this type of discrimination against a large segment of the American population is simply REPUGNANT.

If you are gay – many of my arguments above are self-evident. There is no gray area for me; I can see what is right and what is wrong. When I was in law school I read the same Constitutional Law cases as Prof. Balkin. And I could see how each applied to me. How they should be broadened to encompass me and my reality, who I was and who I am today. I know that my view is supported by many heterosexual Americans as well. Who are they? Look at the polls – in survey after survey of attitudes on equal marriage rights for gays, approval skews towards the young. Yes, the times they are a-chang’in. Older Americans steeped in a history of intolerance, bigotry and clinging to outmoded and outdated religious teachings are being replaced by a generation that is more open and tolerant of differences. They embrace them. They do not fear them. Gay men and women are their friends, their neighbors, their families. And they realize it is WRONG to discriminate against them.
This is a civil rights struggle. As no right-thinking person today would continue to hold that any discrimination based upon race is justified, so too will generations in the future view discrimination today that is based upon sexual orientation. African Americans courageously stood their ground and demanded equality of treatment. In their hearts and minds they knew discrimination was unjust and that changing it was a moral imperative. And slowly they were joined by many other American’s as their perception changed, as they opened their hearts and minds to view the world through the eyes of all men and women. Gay men and women are asking that now. To be viewed as equals. To be treated equally. SEPARATE IS NOT EQUAL.
 

Someone said "There is no fundamental reason it should ever be granted" referring to societal approval of homosexual relationships. I offer one such reason: overpopulation. Virtually every problem facing humanity today is aggravated by human overpopulation. Homosexual relationships have relatively low birthrates; in fact, they have no births at all without third party participation. So, for society's own good, it should encourage homosexuality, at least until Earth's population gets back to a manageable few billions. Think what a high price labor could command if only it were scarcer.
 

Interesting point BlackDog -- and one that has occurred to me as well. Whether by evolution (*gasp*) or "intelligent design", one could posit that having say 10% of the population be homosexual is: (i) an innate form of birth control, and (ii) provides a fall back for taking care of children, parents, spouses where one party in a heterosexual relationship has died. This latter point perhaps makes more sense in more primitive times where humans formed close knit tribes/groups. But one could see the straight members pairing off, making familiers. The gay members assisting in child care and being a supportive structure when primary caregivers might have passed away. I think some anthropoligcal research supports this role. But I am out of my expertise in asserting this. But anecdotally I might add that I have two close women friends (straight) with young children who are single. I have paid for private school tuition, bought Christmas gifts, had them join me on vacation, taken the children to museums, plays and amusement parks. I've been their counsel and their babysitter. I just don't happen to be married or sexually interested in their mothers. But I enjoy and appreciate the role I play in their lives.
 

There it is again, the overpopulation argument. Few have the guts to say it publicly, because it can be boiled down to this ugly bit of elitism: "Heterosexuals are the problem, homosexuals are the solution." Utterly apalling...

Even if you believe such tripe, go peddle it in the third world where overpopulation is actually taking place -- not here in the prosperous west where birth rates are falling and 1 acre lots are normal.
 

but is the issue whether two gay people can get married or whether two people of the same sex can get married? it would seem that the problem is with the latter since new york's ban on same-sex marriage does not prevent a gay man and a lesbian from getting married. if the law prohibited homosexuals from getting married, even to partners of a different sex, then the issue here would be that new york is discriminating against these couples on the basis of their sexual orientation. but that's not the case here so maybe the strongest argument to uphold hernandez would be based on sex equality -- any man, whether he is gay or straight or curious or just not really sure of his sexual orientation is absolutely prohibited from marrying another man, regardless of his sexual orientation. new york is clearly making a distinction on the basis of the sex of the partners because two straight men or two straight women are prohibited from getting married. (granted, most people of the same sex who want to get married are gay but you never know in a place like new york...)
 

Hey Marty: Declining birthrates in the Westernized nationas are a very recent phenomena -- past 10, 15 yers max. And longer life-spans only slightly more recent, increasing significantly over past 50-75 years in modernized nations. Compare that to the whole course of human history!

Your trite reductionism does nothing to address a well-observed FACT: Homosexuality exists. And in significant numbers, in every society. (It's a longer discussion because sexuality might have been a more fluid concept, but it's cleary documented in ancient times, Greeks, Romans, etc.) And scientific observation of homosexual behavior has been made in the animal kingdom. So, whether your are an evolutionist or a creationist, as homosexuality has always existed (and don't even start saying it's a "choice", that's just plain crap) how do you answer the question of what biological function does homosexuality serve either through evolution or intelligent design?

I think a reasonable question. And I think BlackDog and I offered a reasonable postulate to explain it biologically. And no scientist would expect the pace of evolution to have outstripped the speed of industrialization and modernization that have resulted in declining birth rates in the West.
 

And one more thing (Marty, Parker and others on this blog), Marty writes: "It is an unfortunate fact for advocates of SSM that all persons are treated equally with respect to marriage. This is so regardless of race, religion, gender, handicap, or even sexual orientation" -- and others have made the same argument, i.e., that gays are not discriminated against because they can marry a person of the opposite sex.

A superficially attractive argument. But the very UGLY underpinning of it is that it wholly negates the very being of gay and lesbian people. The argument succeeds only by completely ignoring the idea of what it means to be gay or lesbian and how that innate characteristic impacts gays and lesbians in society's current legal framework. As thought I could walk away from being gay and be as happy and fulfilled marrying a woman. How demeaning of me as a human being this argument is; and you wonder why gays and lesbians take this issue so personally? As a gay man, I have no desire to build my life, home and family with a woman. But a family I do have. And we are building our home together and have made a committment for life to one another. But as a family we are denied equal treatment under the law because of our innate biological characteristics and who we desire and choose for a partner (just as those discriminated against on the basis of race under miscegenation statutes). SEPARATE IS NOT EQUAL.
 

Johnny, I had a very long answer to your various points and looking it over realized it *was* a very long answer that was just indulging your false premise way too much.

Marriage is not ABOUT procreation - to say that this civil contract is issued so that people can breed and only those that can should be issued it is both insulting and short-sighted. Too many married couples never breed within their relationship either through choice or inability. Too many marriages are entered by citizens with certain knowledge that they will NOT be passing on any genetic material to offsprings and as such is a transparent rationalization to exclude citizens who just happen to know the very same thing because their cosignee is of the same gender. IF and until sterile citizens are blocked from licensing the civil contract of marriage with an opposite gendered citizen inability to merge genomes is not a valid excuse to prevent license to the contract for anyone. The fact that some states will only issue licenses to some couples only if they CAN'T procreate is just confirming punctuation.

Now if you had tried to say that marriage is for raising children you would have had a more tenable position but that most certainly wouldn't exclude same gender married couples. 50% of US children are being raised in homes other than their 2 genetic contributors. 30% of lesbian households are raising minor children, 20% of gay households. (to put that in perspective 24% of married households have minor children at home according to the last census). Over a quarter million children are being raised by one gay parent or more. If marriage is for raising children then allowing same gender couples license to the contract is a no brainer 'yes'.

I will note that you are misrepresenting the Zablowski case in saying that it specifically listed the possibility of consummation as one of the four elements of marriage.

These are the 4 *potential* qualities of marriage each marriage need not have them all. While some inmates might eventually be able to propogate, some will never even have the chance. Regardless they ALL have the fundamental right to license the civil contract of marriage. It is to those people that Judge William Downing (the Washington state judge that has ruled that gay couples have a right to access to the state contract of marriage) is referring. Again, the exceptions prove the rule - you can not make exceptions for just some citizens in access to a civil contract. If those who can not propogate, even those that will never consumate, have a fundamental right to license the civil contract then obviously you can't exclude citizens who want to marry someone of the same gender for either reason either.

YOu say that 'married people have a right to procreate'. Ok fine. But as long as sterile people are allowed to marry the inability to procreate can not be used to justify withholding license to the contract. As I've said, same gender couples can attempt to procreate with the best of them and have lots of fun in the attempting. That their chances of success is 0% is immaterial as long as opposite gender couples with the same chance are licensed the civil contract.
 

My sense of the purpose of this post is apparently different from most. I do not know law well, so that may explain it. From what I understand, it is a look at the legal arguments made for/against same sex marriage, as was said on the federal level. It does not seem, to me, to say that same sex marriage should or should not be allowed. If you would just take a moment and put your opinions on it aside, you would get the point of the arguments.
Personally, I cannot see how same sex marriage can ruin mine. I do not understand that argument. We as a people look down on other countries for their prejudices and restrictions of their people. Why do we think we have a right to dictate to other countries about freedoms, when we are consistently denying our own people certain freedoms. This includes not only the same sex marriage argument, but other areas as well. Such as, with the clear mandate(?) in the constitution disallowing religion in federal and state matters. I find these people restricting other's freedoms arrogant, and their arguments baseless no matter how you look at it.
 

Besides calling people ignorant bigots, JohnnyATL keeps harping that "SEPARATE IS NOT EQUAL". Which is exactly why opposite-sex unions (besides being the ONLY way "families" are ever created) are so important: they are a perfect INTEGRATION of the sexes.

You are the one claiming that separate is equal, not me.
 

Since the racial analogies are such a favorite of SSM supporters, lets go one step further:

There are some white people who really dislike black people, and vice versa. So much so, that they would not even send their kids to school with members of another race.

Are they free to open their own "whites only" or "blacks only" school? Sure they are -- but they will NOT be entitled to government support or recognition. Only schools which enforce racial integration are entitled to government recognition. Parents, no matter how racist, are still free to educate their children as they see fit. But as a matter of government policy, separate is NOT equal, and integration is worth the effort.

The same holds true for marriage. You and your boyfriend are free to call yourselves married, and to setup whatever kind of "family" you choose. But to say the government is descriminating against you for making that choice, by not recognizing your relationship with benefits, is the same as a Klansman saying he's being descriminated against because the government won't recognize his "whites only" school.

So we agree -- separate is NOT equal. You want equality? Then sexually integrate your family.
 

I’ll continue to call out ignorance and bigotry wherever and whenever I see it. And the posts here are rife with it. Including Marty’s last two.

In his first post the basic supposition is male+female=family. Marty says “opposite-sex unions” are the “only way families are created.” Well, obviously he means to say that only opposite sex couples can together without intervention procreate. Duh. But that does not a family make (as defined by HHS and others and it describes less than a quarter of all American “families”, but let’s leave it at that). No matter how repetitive you are on family and procreation, it remains unequivocally true that the civil institution of marriage is not dependent on either the intent or the ability to procreate, as has been pointed out in postings above.

As for a parent’s choice in educating their children. Sure – they are free to choose to send their kids to an evangelical school where their children will be inculcated with the basic tenets of creationism, discrimination, intolerance and hatred. But EVERY PARENT also has the absolute right (including even non-citizens) to have their children educated in public schools – where racial discrimination is ILLEGAL. No one will be turned away from this state-sponsored benefit because of their race.

But not so a same-sex couple who wish to be afforded the state and federally sanctioned benefits attending marriage. The same benefits (and there are many) that a heterosexual couple can obtain at a drive-through chapel in Vegas on a whim, are forever out of their reach. And these are very real economic benefits.

We as a nation have recognized that discrimination based upon race is wrong. That is one of the hallmarks of an enlightened and advancing society. That is the policy that would prevent the government from funding a Klan-based whites-only school. It is time that we as a nation also agree that discrimination based upon sexual orientation is WRONG. It is directly analogous to race, because like being black, my orientation is an innate and immutable part of my being. I did not choose it. I cannot change it. Just as Marty would aver that he could not change his sexual orientation.

So the opportunity to “sexually integrate” **SHUDDER** my “family” that Marty suggests is not available to me. (Not to mention the suggestion itself is highly offensive; I would never, for example, suggest that Marty go out and get "buggered" or "sodomized" to claim a right of inheritance or an SS Disability Benefit). But, as every other citizen can do, I should be entitled to avail myself of the same statutory benefits for myself and my chosen life-partner who I with to build my own family with. To that end, proscribing me from marrying my same-sex partner or even allowing me to enter into a domestic partnership or civil union -- but not marriage -- means I am being treated unequally under the law vis a vis heterosexual citizens.

You can dress your argument up all you want in your best Sunday clothes Marty. But it is premised on the imposition of your thinly veiled moral judgment of me and the utter failure to countenance the very real fact (strongly buttressed by scientific research and endorsed by the APA) that being gay, like race, is not a choice for millions of Americans. Under the frippery, belt and suspenders – it still stinks. SEPARATE IS NOT EQUAL.
 

"...it remains unequivocally true that the civil institution of marriage is not dependent on either the intent or the ability to procreate, as has been pointed out in postings above."

Yep, that's correct. But it is dependent on sexual integration. Everywhere but Massachusetts anyway...

"...But EVERY PARENT also has the absolute right (including even non-citizens) to have their children educated in public schools – where racial discrimination is ILLEGAL. "

Yep, just as every person has the absolute right to marry and be granted public recognition. But sexual descrimination is ILLEGAL. I'm glad we're seeing eye to eye now.

"...No one will be turned away from this state-sponsored benefit because of their race."

Nor their sexual orientation...

"...But not so a same-sex couple who wish to be afforded the state and federally sanctioned benefits attending marriage. The same benefits (and there are many) that a heterosexual couple can obtain at a drive-through chapel in Vegas on a whim, are forever out of their reach."

No, thats not quite correct -- not just ANY heterosexual couple is entitled to those benefits -- only opposite sex couples. Same thing for gay couples. They don't even ask about that in Vegas, i hear...

"...It is time that we as a nation also agree that discrimination based upon sexual orientation is WRONG."

An arguable point, and i'm not inclined to disagree. Except marriage does NOT descriminate based on sexual orientation.

"...You can dress your argument up all you want in your best Sunday clothes Marty."

I would never presume. I KNOW i'm out of my league on this blog... obviously so are you.

"...your thinly veiled moral judgment of me and the utter failure to countenance the very real fact ... that being gay, like race, is not a choice for millions of Americans."

My moral judgement is hardly "thinly veiled" my friend, nor is yours. Sexual orientation may or may not be a choice, the jury is still hung on that point. But marriage, and who you choose to marry most certainly IS a choice.

You dont want equality -- you've already got it. No, you're after something special...
 

Marty delivered this comment: So we agree -- separate is NOT equal. You want equality? Then sexually integrate your family.

The government does not forbid the marriage of two people who have the same race or religion or political party or social class. Governments and societies that can tolerate this kind of segregation within marriage could, evidently, tolerate sexually segregated marriage.

Marty issued a directive that homosexuals sexually integrate their families. This seems to show a false belief on his part that homosexuals could voluntarily redirect their love to opposite sex partners. Love does not work that way. If someone suggested that heterosexuals voluntarily redirect their love to same sex partners (for whatever reason, even population control), the absurdity would be evident to all. Alternatively, he may think that homosexuals should commit themselves to loveless marriages. That, of course, brings grief to all concerned.

No present societal rule says that both sexes must be present in a family. A widow and her two young daughters, for example, qualify as a family in anyone's book. Heterosexual people might even find it in their hearts to wish happiness and equity in marriage for the homosexuals who, after all, are their brothers and sisters, their sons and daughters, and even their mothers and fathers. (PFLAG is an organization of such people.) I offer that as another reason that the majority society might come to recognize homosexual marriage and even to celebrate it.
 

A jumble of thoughts...
First, 'same-sex' is not synonymous with 'gay' when considering marriage, or public rest-rooms. Neither asks for your orientation before entering.
Second, there are two sisters, one straight, one gay. The rules of marriage apply equally. They are treated the same in the eyes of the law.
Third, a naturalist friend, or nudist to you, indifferent to whether it was nature or nuture, eagerly waits for 'equality.'
Fourth, a married bi-sexual woman hopes for a wife to join her and her husband.
Finally, the discussion might better be why married is different than single; i.e., would this be such an issue if the state treated married and single individuals the same?
 

Point taken BBD, but with respect to the "equality" argument, there is not even a requirement of "love" for the State to recognize a marriage. One would certainly hope so, but just as marriage cannot make you love your spouse, neither can love make a spouse of your lover. At least not in the eyes of the State. You, however, are free to call your lover by whatever name you choose -- there is no "ban" on that.

We can cover the emotionalism, orientation, and religious aspects of marriage, or we can argue equality in the eye of the law, or, if you prefer, we can skip around in an endless circle whenever someone finds their position a little cramped.

For now, i'm going to stick with the equality aspect, with regards to state recognition, and let others speak to the rest. My point is very simple: the requirements of a valid marriage are few and light, and equally applied to all citizens without regard to race, religion, gender, handicap, sexual orientation, etc. etc. Not even "love".
 

HVC: "Finally, the discussion might better be why married is different than single; i.e., would this be such an issue if the state treated married and single individuals the same?"

The de-institutionalization of marriage is exactly where we're headed, because arguments for SSM apply equally to all manner of "non-marriage" relationships. It ignores the fundamental question of WHY the State feels a need to encourage, foster, and provide incentives for marriage in the first place. Obviously our generation is on the verge of forgetting the answer to that very question.

Which can only mean the death of marriage as a civil inistution worth protecting. Which can only mean... (care to guess?)
 

Marty said " . . . or we can argue equality in the eye of the law,. . . "

We could indeed argue that, but we might start by acknowledging that the law varies from jurisdiction to jurisdiction and from judge to judge and from time to time. Here to demonstrate that the law is not monolithic is what one (elected) judge said on the subject recently (paraphrase of Keith Eddings, The Journal News, February 5, 2005):

State Supreme Court Justice Doris Ling-Cohan said the New York City clerk acted illegally when he turned away dozens of gay couples who sought marriage licenses last March. This decision contradicts recent rulings by two other state judges.

Ling-Cohan ruled that refusing gay couples the right to marry violates the equal protection, due process and privacy guarantees in the state constitution. She directed City Clerk Victor Robles to issue the licenses, staying her decision for 30 days to allow the city time to appeal. She also ruled that references to "husband," "wife," "groom" and "bride" in the state's Domestic Relations Law are unconstitutional and ordered that they "shall be construed to mean 'spouse.' "
 

Marty:

“Dependent on sexual integration”? That’s a tautological argument (and a bizarre one at that); you merely describe the state of marriage as it exists today (other than MA). This whole thread is about the legal rationale for changing the status quo.

I am not arguing sexual discrimination. I am arguing there is discrimination based upon sexual orientation. BIG DIFFERENCE. I am absolutely clear about the position from which I speak. You, on the other hand, are not. By harping on sexual gender as the defining characteristic to demonstrate equality of treatment under the law both you and HVC attempt to obfuscate the issue while appearing to be tolerant and supportive of equality of treatment.

But let’s call a spade a spade. Rather than clearly state that you are opposed to homosexual couples being entitled to equal treatment under the law in access to marriage (yes, I mean a gay man marrying a gay man or a lesbian woman marrying a lesbian woman – just so there’s no confusion on your part), both you and HVC simply refuse to recognize what it means to be gay and that that biological distinction results in very real differences in the marriage relationships that one would choose to enter into.

And thus you miss my point entirely, nay willfully ignore it. Marty and HVC assert that homosexuals could deny and suppress their sexual orientation to enter into a marriage relationship with an opposite-sex person -- and Viola! That they are therefore being treated equally under the law. It’s neither a very clever argument nor an intellectually honest one. Sexual orientation is a defining, immutable characteristic (NO – the Jury is not out on that Marty; it lives only because bigots continue to push the idea that a “choice” is involved. I’ve yet to hear any person recount the details of when they consciously chose to “be” heterosexual. It does not happen. Just as it does not happen for those who are homosexual to have any choice in their sexual orientation.) If you argue with blinders on, you are going to miss the target. But no wonder you choose to do so – to confront the true issues head-on would expose your bigotry for what it is.

And thus what your twisted arguments really means is that you feel justified in denying the very essence of what it means to be homosexual. Fine, you reject it. That’s your moral judgment, albeit an unenlightened one, but hey, fifty years ago the majority opinion was that it was OK to discriminate based upon race – another immutable human characteristic. I can no more change my sexual orientation than an African American can by sheer force of will change their skin color. But we now know that bigotry for what it was. ‘nuf said. If the Constitution means anything it is to protect the basic fundamental rights of all persons– but especially to protect those in the minority from the imposed will of the majority to discriminate and relegate them to a second-class status in society because of a characteristic they cannot change. Until I have the right to marry my same-sex partner and obtain all the benefits in doing so that any heterosexual married couple may have, I am NOT being treated equally under the law. I am denied the equal protection guaranteed to me under the Constitution. SEPARATE IS NOT EQUAL.
 

"...Sexual orientation is a defining, immutable characteristic (NO – the Jury is not out on that Marty; it lives only because bigots continue to push the idea that a “choice” is involved."

You can keep telling yourself that.
But you'd be wrong. Here are a few links that might expand your worldview, if your mind is open enough:

http://www.queerbychoice.com/
http://www.narth.org
http://www.exodus-international.org/
http://exgay.blogs.com/xgw/

And remind me someday to tell you about when I chose to be heterosexual. Chose to NOT be homosexual is probably more accurate, as heterosexuality is not even an "orientation" per se, but the natural state of humankind -- proven daily by gay couples at fertility clinics across the country.
 

Thanks for the links Marty – BTW, have you even read through them?

QueerByChoice: Claims 150 members and far fewer that have posted profiles speaking about their “choice” to become gay. Most fall in the category of “coming out” stories – describing when they realized they were gay, and do not describe a conscious choice; or they declare themselves to be bi-sexual (a third defined sexual orientation, albeit much less common that homosexual or heterosexual in which most people fall). Other “choice” remarks by members:

Timothy W:

“If I had a choice to become straight or gay, I would have chosen to become straight because I'd love to have my own children, a family, etc.”

Little Joe:

“I am very glad to say I am QUEER by birth.”

Joey:

“I am a homosexual. I need help. I want to become heterosexual. Please, anyone who reads this, please send me something to help me become a heterosexual again. If you want to ask me something, or send me something, please do. I need to become heterosexual again. Please everyone, you are helping me out a lot. I am aware that you people are queer by choice, but I am trying to be hetero again. Please, I beg of you, help me!!!”

Choice indeed. And this sampling compares to the tens of millions who would affirm that their sexual orientation is their natural state through no choice of their own. Gimme a break. The site is more notable for the pain recounted in some of the stories posted that is a direct result of the homophobia prevalent in most of the world today and how it forces people to deny their being to conform to society’s prejudices.

Narth: Page doesn’t load; have no idea what this one is.

Exodus: The leader of the “ex-gay” movement. And one of the most destructive, pathetic organizations imaginable. They prey on people who are confused and consumed with self doubt as a result of the daily barrage of homophobia that gays and lesbians suffer from the likes of the right-wing conservatives and yes, people like Marty. They are driven to seek comfort in the idea that they can change – because yes, being gay is hard. It separates families and means in America that you are a SECOND-CLASS citizen. You may be legally discriminated against in housing, employment and yes, MARRIAGE. You cannot serve in the military (a route to betterment for millions of people to obtain college educations, etc.). No wonder some are driven to crackpots to seek a “cure” – the burden placed upon gay men and women in our society is not a light one. Which makes it all the more amazing that so many millions and millions still would ever “choose” to be gay if indeed they ever had a choice. Are you laughing yet? And I’m not even getting to how the practices, founders and members of this organization have been debunked and sunk in their own hypocrisy – That is well documented in many sources. But for a taste of it, check out the last site that Marty mentions:

www.Exgay.blogs.com/xgw/ It’s hard to know what to think of Marty’s posting this site. I commend it and everyone should read it. It chronicles the hate-mongering of James Dobson, the laughable stealth tactics of the “Family Research Council” and links to a litany of articles discrediting Exodus, its founders and members. And more.

As for Marty’s “choice”. Oh yes, please – tell us about your choice, I’d love to hear it. In all the gory details.
 

BobVB - after the egg and sperm law is passed, people will only be allowed to have children with a person of the opposite sex. If a woman is allowed to marry another woman, their marriage would have different rights than if she had married a man. Not being allowed to attempt to have chidren with the person you are married to is a significant difference, and the right to have children together is the sine qua non of marriage. No marriage has ever not been allowed, by law, to have children together before.

You bring up cousin marriage, but this actually proves my point that marriage grants procreation rights. 24 states permit cousin marriage. A few of the states that don't will allow it if the couple proves they can't have kids, as a sort of compromise. They felt that te problem with these marriages was a higher risk of birth defects, and so if there weren't going to be any children, then there wasn't going to be a problem. It seemed a harmless and practical compromise for a few rare cases, but you can't cite these marriages as evidence that marriage doesn't grant procreation rights. Come on, it should be obvious that they are regulating cousin procreation, but doing it by regulating cousin MARRIAGE - they consider the two things synonymous. They allow the couple to have the procreation right of marriage, but only because they won't be able to exercise it.

But we don't know how these states do it in these IVF/surrogacy days. It would seem impossible to prove infertility anymore. Do they allow the marriage where pregnancy won't happen through sex, but forbid them from attempting to create offspring using modern techniques available to other infertile and older couples? If so, I think it is misguided, as all marriages should have the same rights, in order to serve marriage's other main purpose of creating equality. But even that conflicted solution would be acceptable, if same-sex marriages were not given all the rights of hetero marriages. But I think if we have "same-sex and infertile cousin marriages" that don't allow artificial attempts at procreation, and regular hetero marriages that do allow attempts at procreation, then they should have different names and different benefits and protections, and all marriages should continue to have procreation rights.

See my blog for more on SSP and marriage rights.
 

I'm not a lawyer and I don't pretend to be one. (I was pre-law in college, but stopped there.) In the interest of full disclosure, I am a married lesbian, my wife and I have been together for 6 years, we even had an (extra-legal) wedding ceremony, exchanged rings, a honeymoon, the whole bit. We plan to have children soon, via adoption, a choice we would have made anyways even if we could procreate together.

Back to the legal issue at hand. I'm curious, isn't one of the fundamental principles of filing a lawsuit against a person, entity or the government is the burden of proving "harm" due to mistreatment, discrimination, etc.? Therefore the question is this-- is there harm in limiting marriage to opposite-sex couples? If so, what is it?

I'd argue that there is, that if marriage is the foundation of a healthy society then banning gays and lesbians from marriage and the rights that accompany marriage is both harmful to them, financially and socially, as well as to their families and to society in general. Why would anyone want all of these marriage-in-name-only families in our society? These families are integrating themselves into our society already-- in cities, in suburbs, in urban areas. They live everywhere, in every county, have a wide variety of economic and educational backgrounds, as the 2000 census indicates. (Which is believed to be a dramatic undercount, as this was the first time same-sex couples were counted.)

As it stands the government is creating illegitimate children by willfully ignoring that there is no spouse, often a second legal parent, because no legal marriage contract exists. If given a choice these people would marry, would opt-in to the rights and responsibilities of traditional marriage. We all know this argument pretty well-- the rights that come with legal marriage-- so I won't get into the hospital visitation, inhereitence stuff here.

I personally find it really perplexing that first the homophobes complain that all the gays are too promiscuous, we can't commit, etc. Now they complain that we want to settle down, get married, have families and pursue our right to happiness. Then they use the excuse that their religion says gay marriage is bad, ignoring that there are plenty of Christians, Jews, etc. who are getting married with both the blessing of their clergy and their communities. Folks, face facts, you have no leg to stand on except for a firm belief in an inherent superiority of yourself and your families. But times are changing, the inferiority of homsexuals is no longer a given in our society and most other "first world" nations.

We are here, we are queer and-- I'm sure this scares you the most-- we're really not that different from anyone else, we want a lot of the very same things as you. Once the stigma against us and all the people who are challenging our right to exist disappear, we'll just be another minority group that is both a part of and seperate from society at large.
 

I suspect Prof. Balkin has had just about enough of our abuse of his blog, so as much more as i might have to say to you on the matter, JohnnyATL, perhaps our paths will cross again on another blog.

I leave you with one more link, a long list of testimonials of men and women whose "orientation" has changed for the better.

http://www.pfox.org/Testimonials.asp

I don't expect you to actually read them, as your intolerance for such openminded consideration is painfully obvious. But you might get some jollies by calling them nasty names. I'm sure you've earned that right.

Adeui, and thanks to you all for an interesting discussion.

PS: Mike and the gang at XGW would love to have you as a regular, Johnny, they're great at spirited debates like this one. But be forewarned, you're bound to meet some folks in the comments who are living proof that the jury IS still out on that whole "immutability" thing. Not that you, or the the other XGW regulars, will bother to listen to them. But it's fun to call them names anyway.
 

Has our conversation been an abuse of Professor Balkin's blog? Any slight hint to that effect from him would have silenced me. I would have liked to hear more from people schooled in constitutional law. In particular, I would have liked their informed opinion of my amateur suggestion that denying homosexuals' marriage rights is an unconstitutional infringement on their religious freedom.

If this is to be the end or our present exchange of views, I will content myself though with a few quotations from an article about Justice Ling-Cowan.

"[T]he right to marry 'is not a privilege conferred by the State, but a fundamental right that is protected against unwarranted State interference,'" she wrote, quoting Goodridge v. Department of Public Health, 440 Mass 309.

The state must demonstrate a compelling interest to infringe on fundamental rights, and no such interest existed here, Ling-Cohan ruled.

The city posited two compelling interests, both of which Ling-Cohan discounted.

First, the city argued that maintaining the "traditional institution of marriage" supported the clerk's decision to deny marriage licenses to the same-sex couples.

Ling-Cohan found that, among other things, "'preserving the institution of marriage' is just a kinder way of describing the State's moral disapproval of same-sex couples," citing Lawrence v. Texas, 539 US 558.

The city also argued that denying the licenses ensured consistency with federal law and other states, noting that the Federal Defense of Marriage Act provides that, among other things, "the word 'marriage' means only a legal union between one man and one woman."

Ling-Cohan held that a desire for uniformity did not rise to the status of a compelling interest.

"It would be 'irrational and perverse' to deny such New York resident couples and their children the protections of marriage that they would enjoy under the laws of New York, on the ground that they will not have those protections under the laws of other States, or under those of the United States," she wrote, citing U.S. Supreme Court Justice John Paul Stevens' concurring opinion in Carey v. Population Services Intl., 431 US 678.
 

Marty-

It's not closed minded to challenge the legitimacy of a group-- Parents and Friends of Ex-Gays-- that uses the existence of homophobia in society and in the families of gay people to beat them up with it, to make them feel bad about being who and what they are. Also, at the very heart of any ex-gay organization's mission? Religion. They're not organizations as much as they are ministries. (They also call themselves as much.)

Also, can we please talk about how the two ex-gay founders of Exodus International (a much bigger ex-gay ministry than PFOX) ran off together? What does that tell you?

Trust me, I'm sure I know more about ex-gays than you do. (Unless you are one.) I've studied ex-gay groups, I've talked to ex-gay people, there is no real "success" in making a gay person straight. Ex-gay people openly admit that they are suppressing the part of them that they have been taught is wrong according to someone's else's scriptural interpretation-- the part of them that others have told them that they should hate. (Ironically Jesus never ever talked about homosexuality.) Most ex-gay people talk about it being an everday struggle, they are the only heterosexuals I've ever encountered who talk about "choosing" heterosexuality. Do you honestly think that makes them truly straight?

Personally I have no animosity towards ex-gay people, I mostly feel great sympathy towards them, they are victims. But the folks who prey on them are nothing more than snake oil peddlers, selling false hopes to people who need love and support, not lessons in self-loathing.
 

Society should endeavor to create straight people who create equality by pairing up with a person of the other sex into a single legal entity, and who share responsibility for the children they create with the person they create the children with.
Society might not be able to make every person straight, but it should be respected as the ideal that everyone should be. Wouldn't you want to be able to be have offspring together with the person you love and live with? Embody your kinship in a child that is half you and half the person you love? Not have some female third party busting into your life with claims of parenthood? Not having your child asking about who her mommy is? Not being shut out from the bio relationship your adopted son has with his "real" dad? You would be able to do that, without unethically creating thousands of destroyed freak babies and ushering in a brave new world of manufactured people, if you were just straight. That's why society should try to make straight people.
 

Johnny Moral said "That's why society should try to make straight people" as if the present relentless pressure is somehow insufficient. Society might instead continue to show its wisdom in minding its own business.

Back to the topic of constitution theories of same-sex marriage though, what do you think of Justice Ling-Cohan's statements? How about this one in particular: "[T]he right to marry 'is not a privilege conferred by the State, but a fundamental right that is protected against unwarranted State interference,'"? Is there a solid constitutional theory that endorses governmental policy of recognizing Catholic marriages but not MCC marriages while maintaining government neutrality on religions? More generally, how do lay people most intelligently approach the opinions of legal experts?
 

Oops, more "choice" that doesn't fit the template...
http://www.washblade.com/2005/2-11/view/columns/choosing.cfm

Don't you wish these people would just shuttup?
 

I knew Marty wouldn’t be able to stay away!! ;-) And here I thought he had retreated merely because of his inability to cogently and thoroughly respond the many points that I have made!

So let me catch up. I don’t think this thread constitutes an abuse of Prof. Balkin’s blog; the factual discussion here does inform the legal underpinnings of each of the theories being discussed and certainly their validity is a worthy topic. If the posts are germane, the bandwidth is nearly infinite.

Marty’s penultimate parting shot was a link to yet another website – this one for Parents and Friends of Ex-Gays (“PFOX”). Yes Marty – I do read them. I am open-minded and I do consider them and have an open mind. But like any good, critical thinker I consider the source, the context and try to discern what they mean in this debate (I’ve seen no similar analysis from you to explain away the millions of gay and lesbian Americans who reject reparative therapy, the idea of choice and who are now demanding their full rights as Americans). OK, let’s examine the group’s legitimacy and relevance:

1. STATISTICALLY IRRELEVANT. Even aggregating the “testimonials” from Marty’s earlier links and the PFOX testimonials, the number of stories alleging “choice” is miniscule in comparison to the number of gay and lesbian Americans. Quite simply, they are statistically insignificant and come nowhere close to being a representative sample of the normative experience for gays and lesbians. Conversely, the web-pages, books and testimonials from gay men and women claiming their sexual orientation in the face of great criticism and threat to personal safety are LEGION.

2. CAUSE, NOT THE CURE. OK, but why do they exist at all? Many of these “testimonials” recount agonizing emotional struggles that individuals have faced as they tried to reconcile their same-sex attraction (SSS – their term, not mine) with religious beliefs/teachings. Well, no big surprise there!! The pressure that gays and lesbians face from families, communities, church and society at large to conform and “choose to be heterosexual” is ENORMOUS. The vast majority struggle with this; most overcome it after a lot of pain and agony. And some are driven to seek reparative therapy and “cures” promulgated by quacks, charlatans and religious zealots like Cohen, Throckmorton, et al. The impact of this heinous assault on gay and lesbian individuals results in suicide, broken families, emotional trauma, financial costs and many, many damaged lives. If homosexuality were recognized as the natural biological state that it is (YES, Marty! Proven not by gay couples at fertility clinics but by the millions of gay and lesbian Americans that affirm their being at GLBT Pride marches every year across the country, that marched in Washington D.C. in 1987, 1993 and 2000 to demand their equal rights) and society were accepting and supportive instead of damming, you would not be reading these “testimonials” at all Marty. They wouldn’t exist. My heart goes out to all the gay men and women who struggle with their sexual identity as a result of our society’s inability to deal openly and honestly with sexual orientation. These are not emotionally healthy people. They are DAMAGED. This is what we can lay at the feet of PFOX and what they are responsible for.

3. READ THE STORIES. Yes, I do read them Marty. Some are downright laughable in their simplistic analysis of a much more complex human condition. In others the pain to conform is palpable.

4. PFOX FOUNDER UNETHICAL IN COUNSELING PRACTICES. Richard Cohen, the President of PFOX has been expelled from the American Counseling Association for ethical violations. "It is no surprise that Richard Cohen violated the ACA ethics, because reparative therapy itself lacks integrity and attempts to meet their agenda's need, not the needs of clients." (Joe Kort, psychotherapist and author of "10 Smart Things Gay Men Can Do to Improve Their Lives.").

5. EX-GAY MINISTRIES UNETHICAL. And Cohen is not the exception – every one of these guys attempting “change” therapy have been widely criticized by professional and legitimate doctors and medical associations. But perhaps more importantly, MOST are not even validly credentialed psychiatrists or physicians at all! They are ministers who approach reparative/choice therapy with a religious agenda at hand. And the thought of their plying their slipshod, back-alley “cures” on emotionally traumatized people is absolutely horrifying.

6. AT ODDS WITH LEGITIMATE AND WIDELY RESPECTED MEDIAL ASSOCIATIONS. The American Psychiatric Association has repudiated "reparative therapy" for homosexuality. "There is no evidence that any treatment can change a homosexual person's deep-seated sexual feelings for others of the same sex." (APA Website).

7. FAILURE IS THE NORM. For all the links that Marty can find, the overwhelming evidence is that these reparative therapy and counseling charlatans are misguided and hurtful. Success rates are close to zero if not nil, failure is the norm. Even those “ex-gays” who claim to have been cured, have admitted that they still harbor same-sex feelings, but through sheer force of will control them to marry and have a family, etc. I can only imagine how stressful it must be to live with the tension of that internal dissonance. And shall I even mention the numerous highly-publicized cases of “reformed” gays “falling off the wagon.” (Paulk, et al. – “Founder of Exodus Chased Out of Gay Bar in D.C.”; Zoe recounted the “love-birds” that founded Exodus flying off together to make a new, gay nest. LOL). You really just gotta laugh. Except the damage these people are doing is so damm painful to watch it makes you want to cry.

In framing this discussion, I think it also important to make a few overall observations:

1. THE SCIENCE: There is no science to support the notion that sexual orientation is a voluntary choice. In fact, all the evidence points strongly against it and that sexual orientation is in all likelihood a strong genetic component and early imprinting. Through empirical evidence (MILLIONS of gay and lesbian people) we know this to be true. Scientists now are only beginning to unwind the mysteries of the human genome and may never fully understand the complexities of they work to create the human beings that we are. But on this basis, is it just for society to run roughshod over the human rights of so many millions of people?

2. RELIGION: So, what is the justification for denying gay men and women their rights? Religion. Yes, that’s what it comes down to. The desire of the majority to impose their moral judgments on a large minority. They conveniently throw-out more than two centuries of the guiding principle this country was found upon: Freedom of Religion – and yes, freedom FROM religion. And whence from? A dusty old-book – and one that is far from being absolutely unequivocal in it’s condemnation of homosexuality; scholars argue over the interpretation of what the key passages cited really mean. Not only that, but it’s rife with other prohibitions that are at odds with our society and modern-day thinking (Stoning anyone? You cut your hair!! Pork!??? How can you take this seriously?). By lashing out at homosexuals as convenient targets, these religious adherents waving the Bible are simply drowning in their own hypocrisy.

3. NET HARM: Cut away all the crap and argument and consider just for a second the HARM that this issue causes. For individuals, for families, for society. Instead of striving to support loving, caring and compassionate relationships among human beings, anti-gay proponents tear down, vilify, demonize and dehumanize gays and lesbians. The injustices and pain and suffering in the world are innumerable. Loving gay and lesbian relationships are not among them. And if on Judgment Day I am called before my maker to justify my actions here on Earth, I am comfortable knowing I can say I gave to the poor, I helped the downtrodden, I showed compassion to my fellow man; and I loved and cared for my same-sex partner throughout life. I did not tear away children from their gay parents; I did not torture a grieving man when his partner died of AIDS by protesting at his partner’s funeral; I did not seek to deny an aging lesbian widow social security benefits or her partner’s pension forcing her to live in poverty for the remainder of her days; I did not through my hate-mongering drive any young men or women to suicide from the fear of their families, their community or their church.

4. POLITICIZATION: This is where it gets really UGLY. Clearly the issue of same-sex marriage (and gay rights in general) is a political firestorm. Right wing demagogues – and in particular, Evangelical Christians – have used gay-baiting to leverage their power and achieve more nefarious goals. And they’ve done this through lies, distortions, hate-mongering and fear. Pure and simple bigotry and prejudice attempting to hide under the cloak of doing the work of “God”. The dishonesty and lies that are perpetuated in the name of trying to save “families” and right moral wrongs is reprehensible. From Sponge Bob Square Pants (!) to pedophilia (statistically, the purview of heterosexuals), these arguments in-extremis may be the religious right’s undoing.

Lastly, I do not engage in ad-hominum argument – there is no need for nasty-name calling, what fun is there in that, it’s superficial and pointless; but I am compelled to expose and call out bigotry, prejudice, misrepresentation, lies and hypocrisy where it affects the lives of so many millions. And frankly, that is so much easier to do. I feel very strongly that every gay and lesbian American needs at this point in time to take up the gauntlet and root out in every instance where it occurs the untruths and prejudice that oppresses us. Bit by bit, day-by-day, we too shall OVERCOME.

Why is it that so many anti-gay pundits and newsmakers say it is their faith that motivates their persecution of gays? What happened to their faith in a god that in all his/her infinite wisdom has made each of us just the way we are?

And remember . . . SEPARATE IS NOT EQUAL.
 

Re: Marty’s link to Jennifer Vanasco in the Washington Blade. So Jennifer thinks she’s made a “choice”? Good for her. In her column she writes “Every time I make an allusion to the idea that we choose our sexual orientations, I get flooded with pissed off mail.” Why do you think that is Marty? Because she is not representative of the norm of nearly all gay and lesbian people.

What she may be representative of is the fact that human sexuality is, like Kinsey hypothesized, a continuum. The vast majority of people fall at the opposite ends of the spectrum and identify as either homosexual or heterosexual. Some fall in-between. For them perhaps there is a choice; but researches and scientists believe the number of people who are truly bi-sexual is relatively small (and empirical observation seems to bear this out). But wherever you fall on the scale, this appears to be determined at a very early age and is immutable to change.

And others are just mixed-up. Yes, there are emotionally and sexually confused people. And it’s no wonder when it comes to sexual orientation – the repression in this country on the frank and open talk about sexual identity and feelings is quashed (but that’s another blog). For whatever reason, emotional scarring as a youngster, pressures of family, communities, church, etc. But these are anomalous and not a representative sample – NOT by a LONG SHOT.

I don’t wish that these people would “shut up”; many of their stories are quite-telling in the prejudice and bigotry they expose. And I pray that they find away to reconcile in themselves the hurt they are experiencing in the face of the omnipresent discrimination and invective that are hurled at them by people like you, the media and politicians.

Oh – and I’m still waiting to hear YOUR “choice” story Marty. I even have a bowl of popcorn at my side and a box of tissues at-the-ready . . . I know how difficult it must have been to choose to be heterosexual.
 

PS: Hey Marty, maybe you can help me. I’ve been looking for the “flat-earth” blog and the “creation vs. evolution” debate – I assume you know where to find them? Links please . . .
 

Johnny writes **gasp***: “Society should endeavor to create straight people who create equality by pairing up with a person of the other sex into a single legal entity . . . Society might not be able to make every person straight, but it should be respected as the ideal that everyone should be.” Hmmmmm…..Am I reading this right? EUGENICS? Wasn’t this tried before? Oh yeah, that’s right – ADOLF HITLER!! But to shore up your lack of education:

“On November 15th, the U.S. Holocaust Memorial Museum in Washington, D.C., opened a new exhibit called “Nazi Persecution of Homosexuals 1933-1945.” The exhibit reveals that persecution of homosexuals in Germany has a long and notorious history.“Ted Phillips is the curator of the exhibit. The promotional brochures about the exhibit state that in 1871, homosexual sex was prohibited in Germany by a law referred to as Paragraph 175. Penalties under that law were made harsher by the Nazis, and included castration and interment in concentration camps. The brochure information also states that from 1935 to 1939, “78,000 men were arrested for violating Paragraph 175.” A significant number of those arrested were sent to concentration camps, where they were forced to wear pink triangles making them easily identifiable, and were “often subjected to physical and sexual abuse by camp guards and fellow inmates.”“Homosexuals, along with Jews, Gypsies, Soviet POWs, the mentally and physically handicapped and Jehovah's Witnesses, were marked for annihilation. Of those murdered by Nazis in and out of concentration camps, six million were Jews. The other groups totaled five million. “Persecution of homosexuals in Germany did not cease after the end of the war. The Jewish paper, Forward, makes the shocking revelation that “homosexuals who were found in 1945 by allied forces in concentration camps and detention facilities were transferred to German prisons to complete their sentences.”(Ed Koch, former Mayor of New York, briefly summarizing the persecution of Homosexuals under the Nazi regime, Bloomberg Radio address, 2002).
See also: Shaul, Elisheva "Homosexuality in the Third Reich." Encyclopedia of the Holocaust. Isreal Gutman, ed. New York: Macmillan c1990 ve, pp687-688
Grau, Gunter. ed. Hidden Holocaust?: Gay and Lebian Persecution in Germany 193301945. Chicago. Fitzroy Dearborn 1945
Lautmann: Rudiger. Sexual Politics in the Third Reich: The persecution of the Homosexuals during the Holocaust. DD 256..S3. L38 1988
Lenz, Reimar. The Gay Holocaust: The Dutch and German Experience: The Writings of Reimar Lenz, Ron Tielman, Adriaan Venema. Jacksonville, Fla. Urania Manuscripts, 1979
Plant, Richard. The Pink Triangle: The Nazi War against Homosexuals. New York: H. Holt c1986
Porter, Jack Nusan. Sexual Politics in teh Third Reich: The Persecution of the Homosexuals during the holocaust: A bibliography and Introductory Essay. Montreal. Concordia University, 1991
Rector, Frank. The Nazi Extermination of Homosexuals. New York. Stein and Day. c1981
Heger, Heinz. The men with the Pink Triangle: The true life and death story of Homosexuals in the Nazi Death Camps. Boston. Alyson c1980
Seel, Pierre. I Pierre Seel, Deported Homosexual: A Memoir of Nazi Terror. New York. Basic Books. c1995
The futility of Johnny’s statements are equally laughable and offensive. As much as gay people have suffered at the hands of “straight” people, don’t you think they would be motivated to change would it be the case that it were so easy to do???

SEPARATE IS NOT EQUAL.
 

BBD writes: “Is there a solid constitutional theory that endorses governmental policy of recognizing Catholic marriages but not MCC marriages while maintaining government neutrality on religions?”A good point. As stated in postings above and Justice Ling-Cohen’s opinion, the Supreme Court has stated that marriage is a fundamental right. But it not a right that is founded upon religion. Marriage is a civil institution distinct and apart from any religious affiliation. By law, marriage does not require the approval or consent of any religious authority to be valid; and conversely, no civil marriage is required to be recognized as valid by any religious faith.

This important distinction seems to invariably get lost in the debate on same-sex marriage. And when called to the fore, I think it painfully obvious that the imposition of religious tenets upon a minority to deny them access to a civil institution that affords great economic and other tangible benefits is, well, UNCONSTITUTIONAL. And make no mistake, religious beliefs are the foundation upon which all opposition to same-sex marriage is founded.

Of course, this brings us full circle back to some of the initial posts to Prof. Balkin’s blog. The state can regulate marriage – but it must have a rational, compelling basis to do so. Justice Ling-Cohen found that it did not. The Massachusetts Supreme Court found that it did not. The Vermont Supreme Court found that it did not. And analogously, Canada, Denmark, the Netherlands, The European Union Governing Council, Spain and South Africa have all in their respective judicial systems found that it has not. Whether one argues that same-sex marriage harms children, threatens the heterosexual institution of marriage or whatever, these arguments crumble under the light of any rational, objective analysis. And really, that is the point of much of the discussion throughout this blog.

And of course, I would argue that the standard should in fact be much, much higher – that sexual orientation is, in fact, a suspect classification and that gays and lesbians should be protected fully in equal access to employment, housing, adoption rights, etc.

That is why SEPARATE IS NOT EQUAL.
 

Justice Ling-Cohen: The right to marry 'is not a privilege conferred by the State, but a fundamental right that is protected against unwarranted State interference.' So, she's opening it up to sibling marriages, 12 year olds, polygamy, the entire Augusta National Golf Club, etc? Seems like "unwarranted" is the key word here.
Attempting to create a person through any means other than combining an egg and a sperm is unethical, unreliable, unsafe, and ought to be prohibited. Therefore, it is not unwarranted to prohibit marriages that can only procreate through unethical and prohibited means.
 

Johnny – you’re absolutely right, “unwarranted” is key. Clearly there’s a rational basis for protecting a 12 year old from getting married; as with alcohol consumption, voting, and driving, society has determined that a certain level of maturity is required before a person can evaluate the complexities and responsibilities of entering into a marriage (not to mention that marriages entered into at a very young age tend to be unstable, young pregnancies result in attendant problems, and young marriages may not be educationally or financially well-footed to succeed in society at large.) There are also strong social arguments against polygamy, incestuous relationships and yes, bestiality (just anticipating the extremity of your argument).

There are NOT, however, strong arguments against same-sex marriage that are not premised on religious fundamentalism, prejudice and bigotry. And that was the subject of Ling-Cohen’s analysis. And it is the analysis that supports the groundswell, nay global movement that is edging towards greater and greater recognition of same-sex marriage.

As for your egg & sperm argument. Give it up already. Procreation is not the sine qua non of marriage as a civil institution. Period. There is just no argument on this.

What you seem to be railing against is cloning. Fine. Another blog, another day. There is no gay agenda to seek the right to “clone” humans; if anything, the research that appears to be ongoing seems to be the exclusive province of heterosexual mad-scientists (I’ll leave it to you to guess what their unknown motivations may be; as a lay person I can only guess that a deeper understanding to reproduction, cell activity and genetics might lead to greater benefits for all mankind; but I too am aghast at the thought of cloning a human being). Trying to smear gays and lesbians with the bizarre notion that they seek to “clone their own” is just another low-ball tactic to confuse the debate surrounding the continued oppression of gays and lesbians.

Like any infertile heterosexual couple, gay couples can raise children through any number of means. IVF, surrogate pregnancies, adoption and foster care. It should be their right; but neither should it be their, nor any “straight” couple’s, obligation.

The logical progression of your arguments would seem to mandate that to be valid, the parties in a marriage MUST pro-create through traditional sexual intercourse without the aid of any infertility assistance. And that lacking pro-creation, the marriage must be rendered void (and illegal?).

SEPARATE IS NOT EQUAL.
 

JohnnyATL - I'm not suggesting that gays, once gay, can change, or that society should punish them. I'm saying that society should raise people to be straight. Those "bisexuals" at Yale are people that claim to be able to go either way, but absent any encouragment to be straight, and with heavy pressure to not be homophobic, and surrounded by pornography and propaganda, wind up gay. That's tragic, because now they will not be able to exercise their basic human right to procreate unless they do it in an unethical way that creates hundreds of stillborn babies and defect-prone adults, or in an illegal(!) way that seperates their child from its other parent, and seperates them from their spouse.
It's funny that you bring up eugenics, because stopping eugenics is the entire reason I oppose gay marriage. Natural egg and sperm procreation, between loving couples who choose to marry and procreate together, is the opposite of eugenics.
 

The strong argument agaisnt same-sex marriage is that same-sex procreation is completely unethical.

The RIGHT to Procreate is the sine qua non of marriage. Every marriage has it. Even those cousin marriages were given the right to procreate, but only because they would not be able to. I suspect that those exceptions are not made anymore, in these days of fertility treatments.

>What you seem to be railing against is cloning. Fine. Another blog, another day.

Not just cloning, but all non egg and sperm procreation. Here is the blog: eggandsperm.blogspot.com

>Trying to smear gays and lesbians with the bizarre notion that they seek to “clone their own” is just another low-ball tactic to confuse the debate surrounding the continued oppression of gays and lesbians.

Oh, really? Gay and LesbiansThere is not a right to attempt to create people by combining two eggs or two sperm. Any technique besides combining an egg and a sperm should be prohibited.

Of course a marriage doesn't NEED to procreate, but it has the right to procreate. When two people marry, they have the right to attempt to create offspring. You can bring up all sorts of irrelevant tangents, but a person should only have a right to attempt to procreate with a person of their own sex, and all marriages should have the right to attempt to procreate.
 

Oops, i meant a person should only have a right to procreate with a person of the other sex!
 

JATL: And make no mistake, religious beliefs are the foundation upon which all opposition to same-sex marriage is founded. As i read the comments above, the only ones bringing religion into this debate are from, like you JohnnyATL, supporters of SSM!

There have been many principled objections stated here, not the least of which are the problem legal precendents being set for other non-marital relationships by the simple-minded reasoning of Ling-Cohen. Of course, you don't have to think about those problems -- so long as you get what you want...

So why you insist on bringing up the religious aspects of this debate (where you have absolutely NO case to make) is beyond me. Unless you're just demagoguing everyone again...

Why so much rage, friend? You weren't molested by a gay preist when you were little, were you?
 

Johnny, Johnny, Johnny . . . Society HAS tried to raise all people as “straight” – and look and look at how successful they’ve been at doing THAT! LOL You say “absent any encouragement to be straight” bi-sexuals at Yale turn gay – “encouragement” is virtually omnipresent. I’m not sure what changes you’d suggest for society to make a more determined effort to do so short of torture, concentration camps and extermination (and that’s been tried – also to no effect!).

Yes, through the proposal you advocate you are saying punish gays. You are strongly advocating denying them basic civil rights available to all other Americans. Whether you fess up to it or not is wholly beside the point. Hiding behind the true impact of your position by linking marriage to a pro-creative right is insidious and unimaginative.

There is absolutely no internal consistency in your argument when the “right” to procreate cannot be exercised for many marriages that take place today (due to infertility, menopause, hysterectomies and vasectomies, etc.). A same-sex couple would still have the right to pro-create, but be unable to exercise it in the traditional fashion. It in no way negates their ability to raise children and raise families of their own.

In fact, most of your posts belong in the realm of Science Fiction – not fact. I find little need to debate the moral and ethical implications of human cloning/non egg-sperm pro-creation when it promises to be many years before realization (if ever).

PS – “Eugenics” is the improvement of the human race by controlled selective breeding; non egg-sperm production is NOT eugenics. Limiting (selecting) humans to pro-create solely through egg-sperm production IS.

SEPARATE IS NOT EQUAL.
 

Society has been very successful at raising straight people. There is no encouragement for people to be straight these days. About the only thing that is considered wrong for someone to do these days is "pretend" to be straight when they "are really gay". At the same time, they are told that it is noble and honorable and hip and exciting to be gay.

Changes I would suggest: ending gay straight alliances in schools, prosecuting pornography creators and disrtibutors, allowing people to express preference for straightness and abhorance of homosexuality without fear.

I'm encouraging all people to take advantage of all their civil rights, including marriage and procreation.

What's your position on SSP rights, anyhow?

THe egg and sperm law would not effect people's ability to raise children in all the ways they do now (adoption, sperm donors, etc).

Infertile hetero couples and older couples all HAVE THE RIGHT to marry and attempt to combine their gamates. Their medical condition is private and unknowable. If they have a kid, using technology or through sex, it will be legal and ethical, because they will have combined an egg and sperm. A same-sex couple PUBLICLY will not be able to combine an egg and sperm. They would HAVE TO - obviously and publicly - do what was done to create Kaguya, and that owuld be illegal and unethical. See?

THis isn't Science Fiction it has been done in mice, and gays and lesbians are on record as awaiting it with baited breath. The time to talk about it is now, when we are debating giving the rights of marriage to same-sex couples.

SSP will lead to all sorts of other genetically altered births, and that most certainly IS eugenics. Keeping procreation natural, and encouraging everyone to take part in it, is NOT eugenics. James Watson is a eugenicist, he of Cold Spring Harbor labs, formally called the "Eugenics Record Office".
 

Johnny writes: “Society has been very successful at raising straight people. There is no encouragement for people to be straight these days.” Really? What planet do you live on?? You have no accounting for the millions of gay and lesbian people that exist today? Your statements are patently absurd, not based in reality and do not deserve refutation.

Johnny continues: ” Changes I would suggest: ending gay straight alliances in schools, prosecuting pornography creators and disrtibutors, allowing people to express preference for straightness and abhorance of homosexuality without fear.” And with that he lays out a blueprint for intolerance and suppression. There is not causal link between pornography and homosexuality. Johnny wants the right without consequence to demonize, vilify and dehumanize homosexuals without fear. Sad. Pathetic. Bigoted.

Neither Johnny nor Marty can refute either the natural state of homosexuality or the fact that the idea of “change” or raising people to be “straight” is at best a hoax and at worst a cruel, atavistic and inhumane pursuit.

Johnny fails to realize that whether or not same-sex procreation would be unethical is wholly beside the point and not germane to this discussion; no one that I am aware of who is arguing the case for same-sex marriage is seeking that right as an attendant benefit of same-sex marriage. When and IF it ever comes to pass that human reproduction may be achieved through cloning or any other form of non egg-sperm reproduction, then at that time the moral and ethical ramifications can be debated – and I’m sure society will impose restrictions upon its availability for use. And those restrictions should apply equally to all persons, irrespective of their marital status or sex.

Your discussion of the “right to pro-create” as a basis for denying equal rights to gay and lesbian Americans is, frankly, PURE UNADULTERATED HATE MONGERING. You state with regard to SSP “gays and lesbians are on record as awaiting it with baited breath” Says who? Well – NO ONE. Your supporting source material is laughable. The “Gays” link to Wicker et al is to a fringe lunatic and opportunist (Mr. Wicker operates out of a lamp-shop in New York City. “With a Web site dedicated to reproductive cloning, Mr. Wicker feeds leads and personalities to a number of journalists, TV producers, film makers, book authors and others for whom cloning stories are both irresistible human theater and a source of steady employment” The Wall Street Journal) and the “Lesbians” link is merely to an editorial penned on the Japanese research that spawned Kaguya and merely poses a “what-if” question and advocates nothing.

Your SSP argument is a red-herring, spawned of hatred and prejudice towards gays and offers no rational basis for continuing to deny gays and lesbians their civil rights under the Constitution. The level of your discourse I think clearly demonstrates your reasoning ability. SEPARATE IS NOT EQUAL.
 

Marty writes: “the only ones bringing religion into this debate are . . . supporters of SSM!”ALL of the material that Marty refers and links to regarding Ex-Gay organization is heavily associated with Christian ministries. Read the links he has above. The “choice” argument that Marty argues in favor of is the banner under which right-wing conservatives and religious fundamentalists have long waved to deny gays and lesbians equal rights – not only in marriage, but other civil rights as well.

Marty continues ”There have been many principled objections here” – objections, yes, but no substantive refutation of my arguments challenging them. Merely Marty glosses over every one of my detailed and enumerated points refuting his support of “choice” and Johnny’s is merely repetitious. If only I keep repeating it to myself, it must be true, it must be true . . .

Marty continues: ” not the least of which are the problem legal precendents being set for other non-marital relationships by the simple-minded reasoning of Ling-Cohen. Of course, you don't have to think about those problems -- so long as you get what you want.” Problems for other non-marital relationships? Such as? Name them. And really, if that is the most compelling argument you can raise at this point, give it up now.

I don’t disguise what I want or the reasons therefore. EQUALITY for all – irregardless of sexual orientation. I think the underlying motivation however for both Marty and Johnny’s argument are much more suspect.

Lastly Marty writes: ” So why you insist on bringing up the religious aspects of this debate (where you have absolutely NO case to make) is beyond me.” Religion permeates this debate and the issue. If you remove it, which I’m fine with doing, there is absolutely no compelling basis to withhold marriage equality for gays as a civil institution – and you have not even attempted to refute the substance of my arguments above. If you drag religion into the debate, it also fails, because again, marriage is a civil institution and our Constitution provides for the separation of church and state, i.e., no endorsement of religion and therefore no importation of religious views on homosexuality to craft public policy that affects all citizens, gay and straight.

Rage – yes. But hardly as a consequence of molestation (a phenomena which itself is spawned by our society’s inability to deal in a frank and open way with sexual orientation and the resulting prejudices that have driven some men into the priesthood and resulted in unhealthy expressions of their sexuality. Let’s be honest – YOU – not gays are the cause of THAT problem).

My rage arises from the denial of basic civil rights to millions of gay and lesbian Americans. And from the victims of hate crimes perpetrated by young men who have been taught by society that it is OK to hate and commit violence upon gay, lesbian, bi and transgender peoples. From the children who suffer because of inequality of treatment by Neanderthal state governments. Any one with a conscience and a compassion for the fellow human beings would be enraged by their pain and suffering. Enraged by the inexplicable inhumanity, narrow-mindedness and prejudice of their fellow citizens. It is a noble struggle and I hold the moral high-ground.

SEPARATE IS NOT EQUAL.
 

"marriage is a civil institution and our Constitution provides for the separation of church and state, i.e., no endorsement of religion and therefore no importation of religious views on homosexuality to craft public policy that affects all citizens, gay and straight. "

Having already explained that marriage laws do not consider sexual orientation, one way or the other, you would surely agree then that because marriage is not mentioned in the constitution as a "basic civil right" (but it's about to be, if you keep ignoring the wishes of your neighbors) it is subject to regulation by "We the People" though our duly elected reprasentatives. And since "We the People" are a largely religious folk, it is no suprise (and no infringement of 1A) that our values should be reflected in marriage law. That is, unless your reading of 1A is decidely hostile to religion, as i suspect it would be for someone of your persuasion... but hostile to religion is no more constitutional than endorsement of it.

And just to set your own records straight (no pun intended), you might want to brush up on the so-called "founders" of Exodus (not quite), both of whom were married to women and fathers of children that they abandoned for each other -- one of whom subsequently died of AIDs.

Just so you know.
 

The debate has already started, and the consensus has already been reached, that non egg and sperm reproduction is unethical and unsafe and should be prohibited. This means that there is a right that you have with a woman but not with a man. Do you agree with that part, so far? Now, the way it involves marriage - are there ANY marriages that do not have a right to procreate together? No. Even those old "cousin marriages" had that right, because back when they were granted, there was no IVF, no 60 year olds were having children. They were given the right only because the state believed they would not be able to exercise it. A marriage without the right to procreate is not a marriage at all. Do you think the Lovings, or the Supreme Court, would have settled for that sort of marriage? No, they wanted to mix their genes and have babies. Virginia couldn't sterilize them or make them promise not to have kids. That was the "basic civil right" that was the whole basis for their right to marry. If you accept that you don't have a right to have children with a man, but you do a woman, that would be a start.
 

"Almighty God created the races, white, black, yellow, Malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix." My, you “religious folk” sure are an enlightened bunch. Those words are from the Virginia Judge who sentenced the Lovings in 1959 under Virginia’s miscegenation statute, which was later declared unconstitutional and violative of an individual’s right of freedom to marry who they choose (Loving vs. Virginia ). Yes, it was decidedly the values of the times that were reflected in those laws. And yes, the Lovings –if their “neighbors” had their way – would not have been allowed to marry. But of course we all know they IGNORED their neighbor’s wishes and sought the protection of the Court under the U.S. Constitution. It was their right – in the face of their “neighbors” moral approbation. Until then a host of state anti-miscegenation laws -- strongly backed by white public sentiment -- were upheld in state courts well into the 20th century. The reasoning was simple and absolute: Marriage between the races defied the natural order; intermarriage bans had legitimate historical roots and were based on a "divinely ordained" scheme. Hmmm…..does that rationale ring a bell???

Rhetorically I might ask: If you did not believe the Constitution afforded the grant of such rights, why would the President and persons such as you be so hot and bothered about amending it to prohibit marriage other than between a man and a woman. It would seem to logically infer that you believe that there is an interpretation of the Constitution that would grant such rights to gays and lesbians. And rather than live with that (because it oh so offends your moral sensibility) you’d rather amend the Constitution to strip away from a large segment of the population their civil rights and liberties. This means you are seeking to enshrine in the Constitution a prejudice that is founded on a religious based moral judgment. Millions of gays and lesbians live in this country and tens of millions of their families and friends and neighbors DO NOT SHARE YOUR BELIEF. They DO NOT believe that homosexuality is a choice, that homosexuality is a biological fact and/or it is the way that god or whatever supreme being or intelligence they believe in created man. Under the First Amendment those beliefs are entitled to protection. Under the First Amendment the government is proscribed from importing your beliefs to discriminate against other citizens who do not share them. My reading is not “hostile” – it’s neutral – and that was the intent of the framers of the Constitution. If you want a theocracy, go live in Iran – or create your own country (I hear Alabama may be free). But is it NOT the values that have made this country great. It is not the values I believe a majority of Americans share when they understand the issue fully and the bigotry, misinformation and prejudice that is used to inflame the argument by the religious right is stripped away.

As for the founders of Exodus – I am aware of and have read a history of the falling out. But to what point is your post intended to support? It certainly illustrates the absolute failure of ex-gay organizations in their objectives. The APA had debunked reparative therapy, many of those who have participated in it find they truly cannot change and those who are attempting to lead a “straight” existence describe the daily suppression of the natural urges and how strong a pull it is. Which only defies logic to say that there is a "choice". The numbers involved in this fringe area are miniscule. So your post does nothing to support your arguments and frankly, clearly undercuts it.

Because I am an American, SEPARATE IS NOT EQUAL.
 

Johnny:

You confuse the ability to procreate (which exists between any fertile man and woman) with a “right to procreate”, which is an incident of marriage, but which is neither necessary nor a sufficient condition of a marriage. Your feeble argument seeks to provide a rationale for preventing gays and lesbians from marrying – but it simultaneously (i) ignores the status and rights of marriage as embodied in states’ laws, and (ii) ignores that marriage is a “fundamental right” not conditioned upon any obligation, ability or right to procreate. In Zablocki the court described marriage as "one of the 'basic civil rights of man'" and "the most important relation in life." The Court also noted that "the right to marry is part of the fundamental 'right to privacy'" in the U.S. Constitution. No where does it define as a necessary component of marriage the “right to procreate”. GO READ IT.

Your “argument” (if one can even call it that) is a rather disingenuous attempt to deny gay and lesbian Americans equality founded upon a rather banal, irrelevant and wholly unrecognized legal distinction.

---- Tha, Tha, That’s all F F F olks! Da Da Da Da Dah!
 

So you refuse to say if you think two women should have a right to try and create a child together? Either you think they should, which is VERY selfish, irresponsible and unethical, or you agree that there is a right that same-sex couples should not have. Which is it?
I don't confuse ability with rights, marriage grants the RIGHT, not the ability. And it's not irrelavent, procreation rights were at the heart of Loving v Virginia, and fundamental to its resolution. Marriage certainly is a fundamental right, and the right to procreate is a "basic civil right" that is the basis for people having a right to marry, but not with a person of the same sex! Banning people from marrying and attempting to procreate with someone of the other sex IS NOT INVIDIOUS DISCRIMINATION. People have the right to marry and procreate with a person of the other sex - even you, even Abe Lincoln, everyone. No one is barred from marriage. Everyone has the right, and yes, even the ability, to be straight.
 

Johnny:

You ask for my opinion on same-sex procreation. But it is an ethical dilemma that does not yet exist. Therefore I can have no opinion unless you present me with a clear-cut hypothetical. As you postulate same-sex procreation it is infused with risks of genetic abnormalities and aborted fetuses. But what of same sex IVF where the DNA from two same-sex individuals is inserted into an egg and sperm resulting in a child. And the process is safe, i.e., statistically no difference in genetic abnormalities or naturally terminating pregnancies as with traditional sexual intercourse between a man and a woman? Given that example, and that it results in a healthy baby (essentially indistinguishable from an IVF) – conceptually I’m not certain I’d object. Do you? (And if so, WHY? – Tradition? Religion? Science? Traditions evolve; Religion is not universal. Times change; fifty years ago most would have been aghast at the idea of IVF, which ethically, morally, scientifically and medically has gained near universal acceptance.

As for the “right” to pro-creation, you remain confused. Marriage confers no special rights. Men and women are free to combine their egg and sperm (as you so indelicately put it) outside of marriage. Given that, how can marriage grant any greater right that each sex already possesses outside of marriage?? As I said, the “right to pro-create” in marriage is simply an attendant benefit – but is neither NECESSARY for marriage, nor alone SUFFICIENT for marriage. Interestingly, traditional marriage vows to do not highlight “pro-creation” as the reason for couples coming together. The purposes and reasons for marriage can be very deep and meaningful (well, unless you’re Britney Spears or J-Lo). It also confers a civil status that results in MANY tangible economic and social benefits apart from being able to produce a child in wedlock. No wonder couples would decide they want the benefit of that. It is NO DIFFERENT FOR SAME-SEX COUPLES. To deny same-sex couples these benefits IS DISCRIMINATION.

SEPARATE IS NOT EQUAL.
 

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The "ethical dilemma" (if it could be called that) of SSP certainly exists, and the consensus among ethicists and scientists is that it would be "completely unethical" to try it on humans. Perhaps, in the future, it won't be, but it certainly is now. The success rate in mice was less than 1%, and humans would be even more complicated. Even the sort of "same sex IVF" you conjecture would have the same inherent problems of not understanding how genes get imprinted by sperm and egg. You can't just take the DNA from an egg and put it in a sperm and expect it to work the right way. It would be unethical even to try. Heck, according to PETA,it is unethical to try it on ANIMALS, and I happen to agree with them. There is NO NEED for this research, it serves no medical purpose, no one is dying of not being able to create a baby from two eggs.

BTW, IVF is TEN TIMES more likely to result in birth defects than sexual intercourse (and riskier even when compared to women the same age), and the President's Council also recommended that certain forms of IVF be banned. IVF isn't a sacred right, and it hasn't gained near universal acceptance. It is more under scrutiny than ever. yes, I would be opposed to same-sex procreation if it was just as safe as IVF, or even regular sex. WHY? First of all because it can't be tested without putting people at grave risk. Second, it can only be done "in house" by females, and they would only produce females. Men would have to use artificial wombs or surrogates, adding risk and cost. I think men and women should remain partners, people should be forced to cooperate in life with a complimentary life partner. And I believe in evolution, not "intelligent design". I don't think we should let anyone replace it with their religious God complex. You might think scientists are smart and clear headed, but they are quite misanthropic and crazy and ill-developed people, not fit at all to make decisions for everyone about the future of life.

As to the rights of marriage, Marriage would not be a "basic civil right" if the Lovings had been free to procreate outside of marriage. They had to get married to legally procreate. Virginia's Court just recently removed their fornication law, but I think only to give it to the Supreme Court to overrule. Marriage still grants the same rights it always did, even though fornication is not prosecuted these days. The “right to procreate” is indeed NECESSARY for marriage. It is the "sine non qua". A marriage without procreation rights is not a marriage. A state could, if it wanted, grant ALL THE OTHER rights of marriage as a civil union. As long as it doesn't grant same-sex couples a procreation right, I'll be happy.
 

oops, I meant "sine qua non" - "without which, not".

Look at Loving v Virginia and apply the logic to banning not interracial procreation but same-sex procreation. And yes, Virginia was trying to keep the Lovings from procreating, from mixing their genes, not from visiting each other in the hospital. Is it "invidious discrimination" when there is a less than 1% "success rate" to same-sex procreation in mice? Even that "success" is questinoable, since all the problems with Kaguya's genes may not have surfaced. To allow anyone to attempt it would be unethical.
 

Johnny:
OK, so what??? I’m not an expert on IVF – but a discussion of its ethics is not germane to equal marriage rights for same-sex partners.
1. No proponent of same-sex marriage equality is arguing for the right to same-sex pro-creation. Your attempt to link a troubling moral and ethical debate over IVF and advancing reproductive technologies is a red-herring. This is NOT the “why” gays and lesbians want equal marriage rights.
2. The ethics, morality and legality of same-sex pro-creation or any other reproductive technologies can be addressed wholly independent of anyone’s marriage rights and be applicable to all persons – if it’s an issue that truly concerns you, your energy is better directed at legislation that directly addresses the ethics of these technologies, not by banning same sex marriage..
3. The “right to pro-create” is NOT the sine qua non of marriage (Ask any same-sex couple who have married in Massachusetts).
Your reasoning is circular: Because all marriages in the past have had the “right to procreate” (although we know many have never intended to conceive or where knowingly incapable of doing so and yet wanted to marry anyway), ergo all marriages in the future must have the “right to procreate” or they will not be true “marriages”. You can run around in circles arguing that until you turn to butter. But you fail to address in any rational way why gays and lesbians should be denied equal treatment under the law.
In fact, you state: A state could, if it wanted, grant ALL THE OTHER rights of marriage as a civil union. As long as it doesn't grant same-sex couples a procreation right, I'll be happy. Effectively, I read you as saying you’re OK with same-sex marriage; you just want a law passed that would prevent anyone from using ethically questionable reproductive technologies.
 

You might logically infer from the Virginia state miscegenation statutes at issue in Loving that the State of Virigia was endeavoring to "preserve the integrity of the races" and prevent the Lovings from pro-creating.

But that is NOT the basis for the Supreme Court's holding in invalidating the state laws.

From Loving v. Virginia:

There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State. NOT A WORD ABOUT THE LOVINGS RIGHT TO PROCREATE AS BEING THE UNDERLYING BASIS FOR THE COURT’S FINDING THAT THEY WERE DENIED DUE PROCESS AND EQUAL PROTECTION UNDER THE CONSTITUTION.

That is why prohibiting same-sex marriage is unconstitutional. SEPARATE IS NOT EQUAL.
 

Johnny Moral said: A state could, if it wanted, grant ALL THE OTHER rights of marriage as a civil union. As long as it doesn't grant same-sex couples a procreation right, I'll be happy. Johnny Moral now makes it clear (perhaps for the first time here) that he would not object to a state recognizing civil unions for homosexuals, even if those union have the same rights and responsibilities as marriage except for procreation.

JohnnyATL in response to that said: Effectively, I read you as saying you’re OK with same-sex marriage; you just want a law passed that would prevent anyone from using ethically questionable reproductive technologies.I read it the same way. Like JohnnyATL, I see the issue of same-sex marriage and the issue of legally acceptable reproduction technologies as separate.

Charles Krauthammer: [B]ecause of the Full Faith and Credit clause of the Constitution (which makes every state accept "the public Acts, Records, and judicial Proceedings of every other State"), gay marriage can be imposed on the entire country by a bare majority of the state supreme court of but one state. This in a country where about 60 percent of the citizenry opposes gay marriage.Andrew Sullivan, in response to that: This is inaccurate. Historically, marriage has never been one of the "public acts, Records, and judicial Proceedings" that the Full Faith and Credit clause mandates are transportable from state to state. If that had been the case, we would never have had a struggle over inter-racial marriage. As soon as one northern state legalized it, it would have been legal in every Southern state. (Civil divorce, ironically, is such an institution. It is the result of a judicial proceeding. Civil marriage, in contrast, is a license.) It has long been established law that the states have a public policy exception to recognizing marriages from other states; and Massachusetts' marriage licenses, to cite the current controversy, are even issued on the condition that they are void elsewhere if unapproved in other states.(Sullivan overlooks California which found its antimiscegenation law to be unconstituional. That was in 1948 and, so far as I know, ahead of any Northern state. Maybe he means to broaden the meaning of "Northern State" to mean "a Union State." Let it pass though.)

Who is correct, Krauthammer or Sullivan? Would access to marriage rites and rights in one state, even if the label is civil union, make these marriages legal in every state?
 

Krauthammer is a blow-hard. Sullivan is correct, States have a right not to recognize marriages that go against their own public policy. I think historically there have been some states, for example, that have refused to recognize marriages where the age of one of the participants was 12, 13 or 14.

It is also true that (until very recently) most states recognized the marriages performed in other states. This is not under the full faith and credit clause, but by reciprocity in their state statutes. For example, Section 308 of the California Family Code reads as follows:

308. A marriage contracted outside this state that would be valid by the laws of the jurisdiction in which the marriage was contracted is valid in this state.Fast forward to our current predicament. The U.S. Constitution requires each state to give “full faith and credit” to the laws of other states. In response to the fear-mongering of people like Krauthammer et al.. of a literal interpretation of that clause, the federal Defense of Marriage Act (DOMA) was passed in 1996 with the express intent to undercut the full faith and credit requirement in the case of same-sex marriages. It is far from clear that this was necessary. Nonetheless, many states have also passed DOMA laws, specifically barring same-sex marriages in that state. The constitutionality of DOMA has not been tested, but soon will be as test cases wind their way through the courts following the same-sex marriages that have occurred in Massachusetts as those couples move to other states and seek recognition under various statutes of their valid Massachusetts marriages. Constitutional scholars seem to be split on the validity of DOMA and how the Court would decide it. It could be the subject of another long blog.

It is interesting to note that Loving was not decided under the full faith and credit clause (but perhaps it could have been?). The Lovings were validly married under the laws of the District of Columbia and arrested as having violated a Virginia statute which negated their marriage. The Court jumped to due process and equal protection to invalidate the Virginia statutes. In its losing brief the State of Virginia argued that "because miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications, do not constitute an invidious discrimination based upon race."

The same argument made today against same-sex marriage sounds similarly hollow. Consider this: “Thus, the State contends that, because its marriages statutes apply equally both to heterosexual and homosexual participants in a marriage, these statutes, despite their reliance on gender classifications limiting marriage to a man and a woman only, do not constitute an invidious discrimination based upon sexual orientation.”

The Supreme Court was not persuaded in Loving. Marriage is a fundamental right. The right to choose your partner is fundamental to marriage. SEPARATE IS NOT EQUAL.
 

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You say that "No proponent of same-sex marriage equality is arguing for the right to same-sex pro-creation."

But they are arguing for "equal rights". The same rights that a hetero couple has. Procreating together should be a right of hetero couples only.

>Your attempt...

hey, I'm not attempting to grant "all the rights of marriage" to same-sex couples. I'm not trying to say that same-sex couples should have equal rights to both-sex couples.

>This is NOT the “why” gays and lesbians want equal marriage rights.

Every loving couple wants to have children TOGETHER. Look at the troubles that older hetero couples go to, spending hundreds of thousands of dollars on pie in the sky treatments, just to avoid going childless or having to adopt or use a sperm donor or any of the other things that gay couples are supposedly perfectly happy about doing. I don't buy it, I think gay couples would want to have children together, same as any couple.

Yes, I am directed at legislation that limits attempts at conceiving to combining an egg and sperm. The problem is that "equal rights for gay couples" contradicts this much needed and wholly appropriate legislation.

3. The “right to pro-create” is NOT the sine qua non of marriage (Ask any same-sex couple who have married in Massachusetts).

Those couples currently have a license to procreate together. It must be rescinded.

What is "circular" about saying that marriage universally and always meant procreation rights, and therefore it means procreation rights right now? Your reasoning is faulty - that since we stopped prosecuting fornication and rescinded illegitimacy laws, that suddenly marriage changed its legal meaning. People argued back when we repealed illegitmacy laws that it would lead to more people having children out of wedlock and harm marriage, but they were scoffed at. It won't affect marriage, you all said, it is only to help children born out of wedlock.

And everyone has equal treatment under the law.

>I read you as saying you’re OK with same-sex marriage;

Wrong.

>you just want a law passed that would prevent anyone from using ethically questionable reproductive technologies.

Specifically, I want the egg and sperm law as proposed by the President's Council on Bioethics passed. But I also want for everyone to be raised to be able to have children with the person they love. I don't think that people should think that who you marry and where your children come from are unrelated, because it destroys family responsibility. If Murphy Brown is fine raising a kid by herself, why should the woman I got pregnant need me to take care of her?
 

>NOT A WORD ABOUT THE LOVINGS RIGHT TO PROCREATE AS BEING THE UNDERLYING BASIS

Take a closer look at Loving v Virginia, and note where the phrase "basic civil rights of man" comes from. Note that the Court had no problem taking that quote from Skinner v Oklahoma, where it referred to procreation and only procreation, and plugging it right into this case about marriage. That's because the two rights are synonymous, they overlap completely. Marriage rights ARE procreation rights. There are no marriages without procreation rights, and - still today but more obviously in 1967 - there are no procreation rights without marriage rights. Currently, all the people who have children outside of marriage do it WITHOUT A LICENSE. They don't have a right to, but they do it anyway.

The laws against interracial marriage were racist and intended to maintain white supremacy. To suggest that same-sex procreation is comparable to interracial procreation is incredibly racist and misses the point completely.
 

Yes, Johnny – you’re right. Skinner did apply to procreation only. And ONLY PRO-CREATION. The case is absolutely silent on whether or not the petitioner was married or not. And it’s completely irrelevant to the Court’s analysis.

In fact, the only mention of “marriage” at all in skinner is as follows:

”Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize [NOTE – it does not mention marriage], if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty [i.e., the right to procreate because he has been sterilized; the power of the State to sterilize is the antecedent of “a basic liberty” – not marriage].”

If “marriage” and “procreation” were one and the same, there would be no need for the court to use the conjunctive “and”, it would be redundant. And in quoting Skinner in Loving, the Court uses only the term “marriage” – and does not at all address the right of procreation in the marriage – merely the right and freedom to choose the partner to whom one wishes to be married. No part of the Loving decision rests on either the intent or ability to pro-create. Because it is not a necessary requirement for marriage. It is a subset of rights within a marriage, but not a necessary one nor a sufficient one for marriage. Your interpretation is, to put it mildly, dead wrong.

In fact, your assertion that marriage grants the only license to procreate is simply preposterous. You write: ” Currently, all the people who have children outside of marriage do it WITHOUT A LICENSE. They don't have a right to, but they do it anyway.” Uh huh, you’re dammm right. Why? BECAUSE IT’S A FUNDAMENTAL RIGHT OF A HUMAN BEING – IRRESPECTIVE OF MARITAL STATUS. See Skinner et al. Duh……

Mysteriously your tirade continues: ” To suggest that same-sex procreation is comparable to interracial procreation is incredibly racist and misses the point completely.” Of course I never have advocated same-sex procreation here or anywhere; it is not even necessary to consider this analysis in considering same-sex marriage rights. Throwing out the “racist” label is pretty clear indication you do not understand the subject.

What is clear however, is that your argument and reasoning pretty much exposes your bigotry and homophobia as the true basis for objecting to same sex marriage rights for gays and lesbians. SEPARATE IS NOT EQUAL.
 

"We will be influenced by our faith but we also have an obligation to take the widest perspective -- to recognize that one of the great strengths of Canada is its respect for the rights of each and every individual, to understand that we must not shrink from the need to reaffirm the rights and responsibilities of Canadians in an evolving society.

"The second argument ventured by opponents of the bill is that government ought to hold a national referendum on this issue. I reject this - not out of a disregard for the view of the people, but because it offends the very purpose of the Charter.

"The Charter was enshrined to ensure that the rights of minorities are not subjected, are never subjected, to the will of the majority. The rights of Canadians who belong to a minority group must always be protected by virtue of their status as citizens, regardless of their numbers. These rights must never be left vulnerable to the impulses of the majority.

"We embrace freedom and equality in theory, Mr. Speaker. We must also embrace them in fact.

"Third, some have counseled the government to extend to gays and lesbians the right to "civil union." This would give same-sex couples many of the rights of a wedded couple, but their relationships would not legally be considered marriage. In other words, they would be equal, but not quite as equal as the rest of Canadians.

"Mr. Speaker, the courts have clearly and consistently ruled that this option would offend the equality provisions of the Charter. For instance, the British Columbia Court of Appeal stated that, and I quote: 'Marriage is the only road to true equality for same-sex couples. Any other form of recognition of same-sex relationships ...falls short of true equality.'"
Prime Minister Paul Martin of Canada, speaking in favor of same-sex marriage in the Canadian Parliament February 17, 2005.

SEPARATE IS NOT EQUAL
 

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Thanks for admitting I was right that the phrase "basic civil rights of man", which comes from Skinner, is about procreation. I don't see how you can still not see the connection to why those procreatin rights are cited in Loving. Perhaps you missed this quote from Zablocki I posted here last week:

"if appellee's right to procreate means anything at all, it must imply some right to enter the only relationship in which the State of Wisconsin allows sexual relations legally to take place."

Don't you see that if the Loving's had been allowed to procreate outside of marriage, then the Court couldn't have said that denying them marriage denied them the "basic human right" of marriage.

>”Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize [NOTE – it does not mention marriage]

Because they were sterilizing people whether they were married or not. Sure, they could marry after they were sterilized, but note that the fact that they could still marry didn't somehow make it acceptable to sterilize them. Marriage without procreation rights is not good enough. See?

Procration rights are necesarry and sufficient for marriage. As soon as the state grants someone procreation rights, they are married. It doesn't matter if they are in love, or dedicated to each other, or whatever. And procreation rights are all society has to grant a couple to grant them marriage. Society hasn't always offered those other "1000 benefits" of marriage, but it has always granted the couple the right to start attempting to procreate.

>If “marriage” and “procreation” were one and the same, there would be no need for the court to use the conjunctive “and”, it would be redundant.

Marriage and procreation are not the same things, obviously, procreation is having children, and marriage is the public joining of the two people so that they may attempt to procreate, whether they do or not.

>And in quoting Skinner in Loving, the Court uses only the term “marriage” – and does not at all address the right of procreation in the marriage – merely the right and freedom to choose the partner to whom one wishes to be married. No part of the Loving decision rests on either the intent or ability to pro-create.

That's because it is so well understood that marriage, and only marriage, gives the right to procreate. (And for the last time, intent or ability have nothing to do with having the right)

>your assertion that marriage grants the only license to procreate is simply preposterous.

Find me the case or the law that says it is legal to have children children without being married. You might think Eisenstadt and Griswald do, but they are referring to the right to attempt to NOT have children in or out of marriage. I repeat that fornication has not been addressed by the Supreme Court, and I predict that Virginia's recent decision to decriminalize fornication will not stand.

You write: ” Currently, all the people who have children outside of marriage do it WITHOUT A LICENSE. They don't have a right to, but they do it anyway.” Uh huh, you’re dammm right. Why? BECAUSE IT’S A FUNDAMENTAL RIGHT OF A HUMAN BEING – IRRESPECTIVE OF MARITAL STATUS.

Why do you say "independent of marital status?" You note how they are always saying "marriage and procreation". The only time they ever seperated them was when they said Oklahoma cannot sterilize people, and that, obviously, was independent of marriage.

So, JohnnyATL, will you stand up and say if it can be banned or do you feel there is a right to it?
 

I meant to say "Don't you see that if the Loving's had been allowed to procreate outside of marriage, then the Court couldn't have said that denying them marriage denied them a "basic human right"? The right they were being denied was explicitly the procreation right found in Skinner, and that is why they had to be allowed to marry. If they could have procreated anyway, then there would be no "basic civil right" to marriage at all.
 

Johnny Moral writes: ”As soon as the state grants someone procreation rights, they are married. WRONG, WRONG, WRONG!!

You fail to read Skinner for what it does stand for. Skinner says “marriage and procreation” are “basic civil rights. Do I need to diagram the sentences of Skinner for you? TWO SEPARATE AND INDEPENDENT RIGHTS.

So, when Loving cites Skinner, it’s for the proposition that “marriage” is a “basic civil right”. It does not refer to procreation at all (but I agree that it is subsumed as one of the rights of marriage, but only one of many rights – marriage is a bundle of rights; and that fact that it is a subset of marriage does not negate it also stands independently of marriage).

Johnny Moral writes: ”That's because it is so well understood that marriage, and only marriage, gives the right to procreate.” WRONG, WRONG, WRONG!! The right of procreation exists for all men and women – inside and outside of marriage. Period. It is an innate human right and THAT is what Skinner stood for. To really understand the Court’s opinion in Skinner you have to understand that fundamental fact. It does not matter whether or not fornication, adultery, or having children out of wedlock is legal or not – Skinner stands for the proposition that the State cannot take that “basic civil right”, i.e., away from you. THAT RIGHT EXISTS COMPLETELY AND TOTALLY INDEPENDENT OF MARRIAGE!!!!

You just repeatedly and continuously confuse and insist on inter-linking the two concepts when that is not what the case law says. It is a gross misunderstanding of well-established constitutional law decisions. It is unequivocally true that the Court’s decision is Skinner does not grant a right to procreate that is founded upon the condition precedent of marriage.

Johnny Moral writes: ”Find me the case or the law that says it is legal to have children without being married.” WHY? It doesn’t matter!!! See SKINNER!

A child born out of wedlock may suffer consequences of such decision; but I defy you to find the law where it says that it is ILLEGAL to have children while not married.

On fornication laws, see Lawrence. The Lawrence court concluded that the Constitution protects the right of adult individuals to conduct consensual personal relationships "in the confines of their homes and their own private lives." this right includes the "overt expression" of the relationship in "intimate conduct."With Virginia's fornication law now invalidated (See Martin v. Ziherl) only 12 or so states today continue to criminalize fornication. Their laws, however, are equally doomed under Lawrence -- for just the same reasons that the Virginia court gave. Such laws are indefensible under Lawrence’s interpretation of the Due Process Clause. As the Virginia court said in Ziherl, there is no "relevant distinction" between a law banning sodomy -- such as the one that Lawrence struck down -- and a law banning fornication. Both "improperly abridge a personal relationship that is within the liberty interest of persons to choose." Not to mention the laws are antiquated and not enforced. That any of the laws exist is merely by virtue of the fact that no one has bothered to bring a test case to invalidate them.

Johnny Moral writes: ”As soon as the state grants someone procreation rights, they are married.” HUH??????

In his follow-up post, Johnny Moral then continues: ”Don't you see that if the Loving's had been allowed to procreate outside of marriage, then the Court couldn't have said that denying them marriage denied them a "basic human right.”Let me ask rhetorically – if the “right to procreate” was so fundamental to Loving – isn’t it peculiar that it is not mentioned in the case at all as the basis for the decision? If that is the real basis underlying the Court’s decision – why the cloak & dagger routine???
You also direct me back to the quote you made from Zablocki that ”if appellee's right to procreate means anything at all, it must imply some right to enter the only relationship in which the State of Wisconsin allows sexual relations legally to take place.” But you did not quote the first part of that same paragraph of the Court’s opinion: ”It is not surprising that the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships. . . . The woman whom appellee desired to marry had a fundamental right to seek an abortion of their expected child, or to bring the child into life to suffer the myriad social, if not economic, disabilities that the status of illegitimacy brings. Surely, a decision to marry and raise the child in a traditional family setting must receive equivalent protection.”READ THAT CLOSELY. First the Court equates the “decision to Marry” on the same plane as “decisions relating to procreation”. Equal – but different. Not one and the same thing. The Court has clearly distinguished the two concepts.

Then it goes on to describe the fundamental civil right of the woman at issue in the case to decide whether or not to have the child. That decision is independent of marriage. She may have a child out of wedlock and there may be social, economic or other legal consequences to the status of the child. But that fundamental decision is protected and occurs independent of marital status.

The Court then continues further to ay that a “decision to marry” must receive “equivalent protection”. Again – each concept – procreation and marriage – is distinguishable and equally protected as a fundamental civil right of man.

Your strained and misinformed interpretations of Supreme Court precedent do not a persuasive argument make.

SEPARATE IS NOT EQUAL
 

Skinner says “marriage and procreation” are “basic civil rights. Do I need to diagram the sentences of Skinner for you? TWO SEPARATE AND INDEPENDENT RIGHTS.

They're seperate, but not independent. To execise procreation rights, you need to marry. Sterilizing people didn't prevent anyone from marrying, but denied them the basic civil right anyhow. Not allowing someone to marry also denies them very same basic civil right.

>The right of procreation ...is an innate human right and THAT is what Skinner stood for.

Right, but to exercise it, you have to marry. That's why there is a right to marry. THat was just so much of a given that it went without saying at the time of Loving, but the Court spelled it out in Zablocki.

>You just repeatedly and continuously confuse and insist on inter-linking the two concepts when that is not what the case law says.

Huh? The case law repeatedly interlocks the two concepts. You haven't answered what you think would have happened if the Loving's could have legally procreated without marrying, or what would have happened if the Virginia had insisted on sterilizing them before allowing the marriage. I'll tell you: if they could have procreated w/o marriage, the court would not have found that marriage was a basic civil right, and if they had tried to sterilize them before they got married, the court would have found that was unconstitutional, even though they were being allowed to marry.

>It is unequivocally true that the Court’s decision is Skinner does not grant a right to procreate that is founded upon the condition precedent of marriage.

Well, duh, it doesn't matter if someone is married or not, if they are being sterilized, they are being denied a basic civil right. How could marriage make any difference?

>Johnny Moral writes: ”Find me the case or the law that says it is legal to have children without being married.” WHY? It doesn’t matter!!! See SKINNER!

Skinner DOES NOT say it is legal to have children outside of marriage! In fact it goes out of its way to mention marriage in this case that is not about marriage at all, when it says that "marriage AND procreation" are fundamental to the survival of mankind, etc. In what way, smart guy, is marriage fundamental to the survival of mankind?

>A child born out of wedlock may suffer consequences of such decision; but I defy you to find the law where it says that it is ILLEGAL to have children while not married.

In Zablocki, and in the laws of Massachusetts and most other states. That's what fornication and adultery and MARRIAGE laws all say.

>On fornication laws, see Lawrence.

That was about sodomy, done in private, and sexual intercourse is as different from sodomy as life is from death.

And reading Lawrence, I came across this: "...it would demean a married couple were it said that marriage is just about the right to have sexual intercourse." Notice the word "just" - clearly the Court is saying that IN ADDITION to marriage being about the right to have sexual intercourse, it is about other things also. If it wasn't about the right to have intercourse (ie, to attempt to procreate), the Court would not have used the word "just".

The Virginia Supreme COurt is off it's rocker, and I can't wait for this to get to the Supreme Court.
Of course there is a "relevant distinction" sodomy doesn't create people. Sodomy doesn't become public, irrespective of the wishes of the two consenting adults. Intercourse does.

Both "improperly abridge a personal relationship that is within the liberty interest of persons to choose."

What about the interests of the future citizen created by intercourse? The state has an interest in their well-being, and can insist that people make a public lifelong legal commitment before making a public lifelong physical commitment.

>Let me ask rhetorically – if the “right to procreate” was so fundamental to Loving – isn’t it peculiar that it is not mentioned in the case at all as the basis for the decision?

What do you mean, it cites Skinner, and basis the whole decision on that quote from Skinner. You are just too young to realize how ingrained the idea was that first you marry, and then you can have sex was before the 70's came along. It was truly a radical notion that people might have sex outside of wedlock.

>You also direct me back to the quote you made from Zablocki ... But you did not quote the first part of that same paragraph of the Court’s opinion... First the Court equates the “decision to Marry” on the same plane as “decisions relating to procreation”.

That's because they are indeed on the same plane. But that still doesn't say that it's legal to have children out of wedlock. It's legal NOT TO (ie, to abort), and she has a right to have the baby once she is pregnant, but it wasn't legal for her to get pregnant.

THe Virginia case will get to the Supreme Court eventually, and I am confident that they will recognize the states interest in ensuring responsible reproduction and equal rights.
 

Johnny, Johnny, Johnny . . . you write ” To exercise procreation rights, you need to marry.”Ummm…what planet do you live on? I suppose you get stoned to death in Iran for having a child out of wedlock, but America is not the rigidly moralistic and judgmental society that you seem to believe it is (or should be). Actually, the Constitution and the Bill of Rights serve to protect people like ME from people like YOU!

The case law simply does not make the concept of marriage and procreation dependent upon one another. You read them wrong buddy. Marriage is a right and procreate is a right. BUT MARRIAGE IS NOT A RIGHT BECAUSE WITHIN MARRIAGE YOU CAN PROCREATE.

Case CLOSED.

Johnny questions ” In what way, smart guy, is marriage fundamental to the survival of mankind? I can only speculate what the Court intended; but what is clear is that they viewed the two as SEPARATE CONCEPTS. Hence, their direct statement is: ”Marriage and procreation are fundamental to the very existence and survival of the race.”Obviously procreation IS fundamental to the continuation of human kind. But I’m fairly confident that even without marriage that procreation would continue to occur. LOL The Court clearly thought that MARRIAGE added something that pro-creation by itself did not. The statutory and legal protections that marriage confers: in inheritance, the family structure that is conducive to education, employment, care-giving, economies of scale in co-habiting, etc. The list goes on and one – and has grown to mean even more as the federal government, private businesses etc. all tie tangible economic benefits to the status of marriage.

And that is something you cannot ignore. You say “It was truly a radical notion that people might have sex outside of wedlock [in the 70’s].” Yes, I apparently am not as OLD as you are. But you seem to lament the fact that it’s 2005 and not 1940. You arguments are not grounded in any real-word recognition of the society in which we live. How it has evolved and how the concept of defining our basic civil rights has evolved.

Skinner was decided in 1942. Miscegenation laws were still on the books. Blacks were still required to sit at the back of the bus. That’s the world that you apparently wish to live in. It is not today.

And here’s where you go all ugly. You state that ” sexual intercourse is as different from sodomy as life is from death.” that analogy I think really does expose the depth of your hatred and contempt for gay and lesbian Americans. I think it colors you repulsive. Both can satisfy a deep human need to connect, for intimacy and to express and shave love with a fellow human being and not result in procreation.

As for the Virginia fornication case getting to the Supreme Court – don’t hold your breath (uh, on second thought . . . ). It will NEVER be granted cert. or will be affirmed without opinion citing Lawrence. That is the consensus of virtually all Constitutional scholars.

SEPARATE IS NOT EQUAL.
 

P.S. -- Be sure to watch The Simpsons on Fox TV tonight. Same-sex marriage in Springfield is LEGAL.

You've already LOST the culture war Old Man. LOL

SEPARATE IS NOT EQUAL.
 

So you seem to admit that in 1940, marriage granted procreation rights? Well, find me the case or the law that stripped procreation rights from marriage. I can see that people have children outside of marriage and are not punished, but I can't see where marriage stopped making it legal. It might not be as necessary as it was, but it still does the same legal function it always did, doesn't it?

You know the part in the ceremony where the person says "you may kiss the bride"? Well, that is a euphenism. Obviously, the couple could kiss all along, right? What they couldn't do is have sex. What is really meant is "now, you may have sex with the bride."

At any rate, you have to agree that there is an egg and sperm law that has been proposed, and, even if you refuse to take a position on it, that there are good reasons to pass it, and if it passes, a man will have a right with a woman that he doesn't have with a man - namely, the right to procreate. I say that's a pretty significant difference, and that relationships that have a right to procreate deserve different benefits and protections and respect, and also that relationships that might procreate have much greater responsibilities. The life/death difference may be deeply insulting and disturbing to you, but it is very real. If you have sex with a woman, you might create life. On the other hand, you probably wear a condom because you don't want to die. Is truth really something you find offensive?

Also, you also have to admit that if you start calling couples that don't even have a right to procreate married, it will change the meaning of marriage - never before (and even you have to admit this is true) has a marriage not had the right to procreate.
 

OK, Johnny -- let’s deal with the most offensive part of your post first. You write: ”The life/death difference may be deeply insulting and disturbing to you, but it is very real. If you have sex with a woman, you might create life. On the other hand, you probably wear a condom because you don't want to die. Is truth really something you find offensive?YOUR “truth” I find highly offensive. You presume that I must wear a condom when I have sex with my partner to protect me from contracting a sexually transmitted disease (“STD”). Well, in point of fact. I don’t. I have been in a monogamous relationship with a partner I trust for eleven years. We have sex -- often – and without condoms. And we’re both healthy.

Your implication that “gay” sex requires a condom or it equals death is woefully IGNORANT. And religious conservatives such as yourself who continue to perpetrate that myth probably are responsible for a great deal of pain and suffering of youth that believe your lies and misinformation and make life or death decisions based on such misunderstandings.

THE FACTS: To put it bluntly, sexually transmitted diseases don’t give a fuck whether the sex you’re having is procreative sex or sodomy, whether you’re gay or straight. Whether you are in a homosexual relationship or a heterosexual relationship, the SAME rules apply. IF you are both free of disease, monogamous AND you TRUST your partner, there is no reason to wear a condom.

But those are very big “IFs” – Men and women cheat on their partners. Divorce statistics (which are through the roof) are telling. The covenant of “marriage” hardly protects one against sexually transmitted diseases. While the statistics are difficult to ascertain for certain and reported figures are all over the map, you can widely find reportage such as the following:

Cheating spouse statistics confirm that 50 and 70 percent of married men (between 38 and 53 million men) have cheated or will cheat on their wives. One study found that 2/3 of the wives (26 to 36 million women) whose husbands were cheating had no idea their husbands were having an affair - largely because they failed to recognize the telltale signs. According to Annette Lawson, author of "Adultery," published in 1989 by Basic Books. "The various researchers arrive at a general consensus…suggesting that above one-quarter to about one-half of married women have at least one lover after they are married in any given marriage. Married men probably still stray more often than married women—perhaps from 50 percent to 65 percent by the age of forty."

According to Maggie Scarf, author of "Intimate Partners," first published in 1987 by Random House, re-issued in 1996 by Ballentine: "Most experts do consider the 'educated guess' that at the present time some 50 to 65 percent of husbands and 45 to 55 percent of wives become extramaritally involved by the age of 40 to be a relatively sound and reasonable one." According to Peggy Vaughan, author of "The Monogamy Myth," first published in 1989 by Newmarket Press (third edition published 2003): ”Conservative infidelity statistics estimate that “60 percent of men and 40 percent of women will have an extramarital affair. These figures are even more significant when we consider the total number of marriages involved, since it's unlikely that all the men and women having affairs happen to be married to each other. If even half of the women having affairs (or 20 percent) are married to men not included in the 60 percent having affairs, then at least one partner will have an affair in approximately 80 percent of all marriages.”So, even within a heterosexual marriage where partners are procreating THERE IS RISK. (How do you think babies born with HIV have come to acquire that disease? Not to mention there are also babies born today with Herpes, Gonorrhea, Syphilis, and other STDs).

Of new HIV infections among women in the United States, the Center for Disease Control in Atlanta, Georgia, estimates that approximately 75 percent of women were infected through heterosexual sex and 25 percent through injection drug use.

So, get off your high horse – you couldn’t be more ignorant or wrong of the FACTS.

Moreover, a solid argument could be made that it is exactly the PREJUDICE that informs your views that helps to continue to perpetrate this travesty. By not allowing same sex marriage and because society-at-large (religious proscriptions, politicians using gay sex as a lightning rod for political purposes, a larger approval by society of intolerance towards gays) pushes many men to deny their same-sex feelings, seek to be “straight”, enter into “straight” sexual relationships – and then lie and cheat on their wives/girlfriends on the “down low” (a colloquial term that refers to men who have sex with men behind the backs of their wives and girlfriends) with other men. And when forced to have such surreptitious sex, encounters become quick, anonymous and unsafe. And then they bring back the STD’s they contract to infect their wives and girlfriends.

Remember – CDC says 75% of new HIV infections in women are through heterosexual sex. PRETTY DAMMING EVIDENCE DON’T YOU THINK???

If on the other hand same-sex marriage were allowed, gays were protected from discrimination, and society came to believe and accept gay relationships as biologically just another part of nature and being a human being, then men who struggle with their same-sex feelings because of these societal pressures would not be driven to act covertly. Many marriages, lives and children would be saved.

But back to constitutional law. You write: ”So you seem to admit that in 1940, marriage granted procreation rights? Well, find me the case or the law that stripped procreation rights from marriage.” No – not at all. Find ME the case law that says procreative rights existed SOLELY WITHIN MARRIAGE.

Again see Skinner: ” The power to sterilize, if exercised, may have subtle, far reaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty.”Skinner DOES NOT SAY PROCREATIVE RIGHTS exist SOLELY WITHIN MARRIAGE. They are a fundamental, basic civil right irrespective of marriage. Because Skinner was decided in 1942, does not mean that those rights did not exist before 1942. The Supreme Court did not deign to grant citizens these rights in 1942 – it merely recognized in the context of a case that they have ALWAYS existed under our Constitution.

As for the meaning of “marriage” – absolutely I want its meaning changed. To apply equally to same-sex couples.

SEPARATE IS NOT EQUAL.
 

What is it that you are trusting your partner about, and why? If you are surprised, and you very much might be (you provided the stats that show how untrustworthy people are), it will not be because you have created life, it will be because you might die. Whether or not that concerns you, and whether or not it happens to you, I am very much offended that you don't acknowledge that creating a life is a very real and weighty responsibility faced only by heterosexual couples. I am also concerned for your health, because considering how proud you are of your relationship's faithfulness, your friend might be afraid to admit an affair had occured for fear of upsetting you. He might choose to risk your life rather than lose your friendship by telling you he had cheated and you'd better use a condom for a while.
>Find ME the case law that says procreative rights existed SOLELY WITHIN MARRIAGE.
Again, it's explicit in Zablocki: "if appellee's right to procreate means anything at all, it must imply some right to enter the only relationship in which the State of Wisconsin allows sexual relations legally to take place." See that "only" there? That means "solely". If there was a right to procreate without marriage, then Zablocki and Loving would not have been decided the way they were. There would be no right to marry. How can you not see that??? Here's the progression, again: there is a right not to be sterilized, because procreation is a basic civil right, and you can't procreate if you have been sterilized. Marriage won't make you fertile again, or restore your basic civil rights. And then, there is also a right to marry, because that is how you legally procreate. Skinner wan't about marriage at all, but still it mentions marriage - why?Fornication and adultery are illegal in Massachusetts, and until recently, in most states. I do hope Virginia appeals to the Supreme Court. Fornication is not sodomy, and of course ensuring that both parties consent to the full responsibiities of chldbearing, and not just sex, is due process.
And - AGAIN - you have to agree that there is an egg and sperm law that has been proposed, and, even if you refuse to take a position on it, that there are good reasons to pass it, and if it passes, a man will have a right with a woman that he doesn't have with a man - namely, the right to procreate.
You also have to agree that all marriages have a right to procreate. There are male-female couples that do not have a right to procreate, such as siblings, etc, AND THEY ARE THE ONLY COUPLES WE DON'T LET MARRY. Why is that?
And up until now, most gays have denied that they wanted to change marriage, only that they wanted to be a part of it. But you are desiring to change marriage for everyone by making it no longer guarantee a right to procreate. That is a scary thought. All marriages should have a right to procreate, and all people should have a right to marry, including Abe Lincoln and you. But no one should have a right to marry and procreate with a sibling, or with a person of the same sex, because that is too risky for the person being created.
 

Johnny Moral writes: ”I am also concerned for your health, because considering how proud you are of your relationship's faithfulness, your friend might be afraid to admit an affair had occurred for fear of upsetting you. He might choose to risk your life rather than lose your friendship by telling you he had cheated and you'd better use a condom for a while.Well, that’s my own damm business isn’t it? It’s every individual’s decision to decide what risks to take or not. But making good decisions means being informed – and not sticking your head into the sand to ignore the reality of the world in which we live. What is really interesting about your post is that you totally ignore the point of my earlier post which is substantive and real. In the context of my personal relationship there is honesty and communication. Because gay men were the first to be struck and come to terms with dealing with HIV, I think many of us have a more advanced and open rapport with out partners on sex and the risks it involves.

Your presumed moral superiority and the covenant of marriage are not protection against infidelity and the disease that it could bring into a sexual relationship. It is directly from the ignorance that is created that we have skyrocketing rates of STDs in the young, unwanted pregnancies, more abortions, etc. Yet the religious right cannot see the hypocrisy of their positions and the great harm they cause. The religious right “pretends” to be against abortion – but is unwilling to openly and honestly educate their children in the first place about sex so that abortion is unnecessary.

You continue: ”I am very much offended that you don't acknowledge that creating a life is a very real and weighty responsibility faced only by heterosexual couples.” I don’t deny that choosing to bring a child into the world IS a weighty responsibility. It should be planned, an informed decision and the parents should be financially and emotionally able to parent such a child. If only it were true that all heterosexual couples who procreate took it so seriously. But you and I both know that they do not.

The ease with which heterosexuals can procreate – without a license, without education, without a job, without any financial stability, without shelter, etc. – has meant that many MILLIONS of children have been brought into this world without the parents to properly care for them. As a result our country has seen an epidemic of child abuse, children left to be cared for young parents ill-equipped to handle the responsibilities of parenting, etc. It’s a travesty. Fortunately, some of those children that heterosexuals have been so irresponsible as to “create” have found loving, stable, secure homes with many same-sex couples through adoption.

Just as gays rehabilitate the inner cities you have abandoned and regenerate real-estate, we again clean up your mess by giving homes to the children YOU abandon. Ironic isn’t it?

BUT BRINGING A CHILD INTO THE WORLD IS NOT A DECISION OF ONLY HETEROSEXUAL COUPLES.

Same-sex couples can also choose to create a child – through IVG, with a friend, with a turkey baster. But it’s never a “mistake”. It’s not because they’ve forgotten to take their pill. It’s not because they’re young and ignorant of the basics of sex because their parents prevented them from being instructed in sex education.

It’s because they really WANT a child. They must plan for it carefully. To adopt they must go through a rigorous screening process, show they are capable, prove financial ability, etc. The barriers to and standards for a gay couple to successfully adopt or bring a child into the world are so much higher that it virtually assures that gay, same-sex couples will be better parents that tens of millions of parents who have pro-created the “traditional” way.

And back to Zablocki. I asked: ” Find ME the case law that says procreative rights existed SOLELY WITHIN MARRIAGE. You replied: ”Again, it's explicit in Zablocki: "if appellee's right to procreate means anything at all, it must imply some right to enter the only relationship in which the State of Wisconsin allows sexual relations legally to take place." See that "only" there? That means "solely".

Well, sorry, but you can’t read. Zablocki does not stand for that. And Skinner clearly states the procreation is a right independent of marriage. And really, I just don’t have the time to teach you constitutional law anymore. You’re just so out of your league and dead wrong on this point.

You also state: ”And up until now, most gays have denied that they wanted to change marriage, only that they wanted to be a part of it. But you are desiring to change marriage for everyone by making it no longer guarantee a right to procreate. That is a scary thought.Explain to me exactly how making marriage INCLUSIVE of same-sex couples will TAKE AWAY a heterosexual married couple’s right to have a child? It won’t. That’s a straw argument – and an incredibly weak one at that. Clearly a same-sex married couple cannot procreate through sexual intercourse – but they can adopt, use IVF or have a voluntary sperm donation or surrogate mother carry a child to term for them. All are possibilities. EXCATLY THE SAME OPTIONS THAT WOULD BE AVAILABLE TO A STRAIGHT HETEROSEXUAL COUPLE WHO WERE INFERTILE AND COULD NOT PROCREATE THROUGH SEXUAL INTERCOURSE. When and if science advances far enough to allow human reproduction through other methods, that should be separately regulated and applicable to all reproductive uses, both by gay and straight married couples. It does not need to be intertwined nor is it necessary in deciding this civil rights issue.

Lastly you state: ”[A]ll people should have a right to marry, including Abe Lincoln and you.” I couldn’t’ agree more!!! LOL (And by the way, YOU do KNOW that Abe Lincoln was GAY????

SEPARATE IS NOT EQUAL.
 

Your gay hero complex is just too much for me to take, though it is humorously stereotypical. You still don't get Zablocki or Skinner, after three or four times explaining them to you, so I give up there. I do want to answer this though: "Explain to me exactly how making marriage INCLUSIVE of same-sex couples will TAKE AWAY a heterosexual married couple’s right to have a child?"

This was based on the proposition that non egg and sperm procreation is banned. If same-sex procreation is not allowed, but a person is still allowed to marry someone of their same sex, then that would mean, because there would be no distinctions between the rights of same-sex marriages and both-sex marriages, that marriage would not guarantee a right for even a both-sex couple to procreate together. Every marriage would be equally subject to a risk assessment and could be prevented from procreating together, since same-sex marriages would be, and all marriages would be equal. This would be very bad, though you would probably gleefully approve of breeders being sterilized or their babies aborted because they might pass on some gene due to their lack of "planning". (And I want to say, just because people "want" a baby and plan for it, doesn't mean they aren't mentally ill and acting imprudently. Man-hating bigots and mentally ill people shouldn't be raising kids.)
 

"Gay Hero Complex"

LOL -- very funny. But I guess when you can't address substantive facts and answer for why so many unwanted, unloved and uncared for children are born to heterosexual couples, then trying to make a joke (and a lame one at that) is really all you're left to be able to do.

You're inability though to separate procreation as only one "right" within marriage and not a necessary once and to intellectually conceive of both straight couples and same sex couples being concurrently entitled to all the rights and entitlements of marriage they can exercise is simply inexplicable. And DENSE. And thick-headed. LOL

SEPARATE IS NOT EQUAL.
 

From The New York Times, February 25, 2005:

The three children besides Jmeir White included Kedar Norris, 5, of Monmouth County, who died from blunt force trauma and a perforated intestine. Child welfare workers investigated his family after he had reported that his mother's boyfriend beat him and squeezed his penis. His death is under investigation by the Monmouth County prosecutor's office.

According to the child advocate's report, Kedar's pediatrician did not report any suspicious episodes to the child welfare system, though the child had required medical treatment five times in two years for accidents, and the doctor did not disclose the injuries to the state when asked.

In another case, Jibril Fuller, 3, of Essex County, died from blunt force trauma, and his mother's boyfriend was charged in his death. Earlier, an emergency room doctor had found multiple bruises, some recent, on Jibril's face, and suspected that he had been abused. But when he was referred to one of the state's privately operated Regional Diagnostic and Treatment Centers, which are set up to assess abuse, a doctor there wrongly concluded that the injuries were not suspicious, Mr. Ryan said, and state child welfare workers also did not substantiate allegations of child abuse.

Mr. Ryan said a third case, of Zion Nicolas, 4, of Passaic County, also involved lapses in medical care, but the details of his death will not be made public until March.
Yes, you've read stories like that before. Sadly way too many times. But isn't it interesting -- I can NEVER recall reading about anything like this taking place to children of same-sex parents. Anecdotal, yes. But also food for thought.

SEPARATE IS NOT EQUAL.
 

Thanks for your great summary of the arguments for same-sex marriage. I have highlighted them in my blog posts about the upcoming oral arguments in the Washington state same sex marriage case which take place Tue Mar 8.
 

JohnnyAtl said:

"QueerByChoice: Claims 150 members and far fewer that have posted profiles speaking about their 'choice' to become gay. Most fall in the category of 'coming out' stories – describing when they realized they were gay, and do not describe a conscious choice"

The list "claims" 150 members because it has 150 members; if you want to verify the number you can check Yahoo's number count or, if you still can't believe that the email addresses subscribed to it aren't fake, you can check the LiveJournal queer by choice community, which has a similar number of members and includes hyperlinks to each of their LiveJournals so you can judge for yourself whether they look like real people.

Are all the members of the queer by choice mailing list and/or LiveJournal community queer by choice? No, of course not - anybody's welcome to join. However, the majority of the members are queer by choice, and the majority of the profiles posted are by queer by choice people. Not every profile, no. The ones you quoted were from people who are not queer by choice. But what exactly do you think you're proving by quoting the proof that some non-queer-by-choice people joined a mailing list for people who are queer by choice???
 

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