Balkinization  

Wednesday, October 25, 2006

The New Jersey Supreme Court Goes the Way of Vermont, Not Massachusetts

JB

The most important feature of today's New Jersey Supreme Court decision is that although it insisted that same sex couples have rights to equal benefits and equal status with opposite sex couples, it did not immediately order that same sex couples have the right to marry. Instead, it left the issue of how to guarantee equal rights and equal status to the New Jersey Legislature. This is similar to what the Vermont Supreme Court did in Baker v. State. That ultimately led to the nation's first civil unions law. Although many gay couples are probably disappointed that the New Jersey courts did not immediately give them what they sought, the court's approach-- which now hands the controversy to the legislature-- is probably the best one for the long run.

Same-sex marriage is an especially divisive issue at this point in our country's history. It is far better for courts to attempt to engage democratically elected legislatures in the task of designing appropriate remedies. That does not mean that courts should abdicate judicial review of what legislatures come up with. Rather, it means that in responding to challenges to marriage laws by same sex couples, courts should explain what the key constitutional principles are that must be satisfied and then leave it to legislatures to make the political compromises necessary to satisfy them. This will result in all of the branches of state government agreeing on how to resolve the question, and therefore it will greatly enhance the democratic legitimacy of the ultimate result.

Although the Vermont decision in Baker v. State initially caused a significant uproar in Vermont, it ultimately led to a solution that is no longer controversial in that state. perhaps equally important, the Vermont decision did not create anywhere near the same degree of backlash as the Massachusetts decision in Goodridge, which became a rallying cry in the 2004 election. In both cases the courts held that traditional definitions of marriage violated the state constitution. But in the Vermont case, as opposed to the Massachusetts case, the court gave the legislature a stake in how the issue was ultimately resolved. In fact, the Massachusetts Supreme Judicial Court refused to let the Massachusetts legislature do anything other than amend its marriage laws to include same sex couples. In essence, it locked the legislature out of the reform process. The result was much more likely to lead to complaints that unelected judges were hijacking the democratic process.

It's important to understand that the Vermont Court in Baker exercised judicial review ever bit as much as the court in Massachusetts; it did not simply leave the issue of same-sex marriage up to the legislature; rather, it forced the issue. But in so doing, it produced a solution that many different people in Vermont could live with.

In addition, one should not confuse what the Vermont court did with judicial "minimalism." The Court made very strong substantive claims about what rights same-sex couples had and what it would take for the Vermont legislature to produce a constitutional bill. That substantive discussion was quite important. If courts simply hide the ball in a minimalist opinion and strike down laws without explaining what constitutional principles are at stake and how they can be vindicated, legislatures will not be able to respond effectively. If courts then strike down a series of legislative responses, that will be far more likely to anger the public and cause backlash. For the strategy to work, courts have to be upfront about what the constitutional concerns are but they also need to give legislatures room to debate the issues. In doing so, they invite legislatures to be partners in constitutional interpretation and implementation.


Comments:

:::sigh::::

Another court holding that there is no fundamental right to homosexual "marriage," but then concluding that there is nothing at all rational about state granting benefits to the most fundamental and vital of all human relationships - marriage - so that they can arbitrarily rewrite a democratically enacted law.

Every time the Courts arbitrarily do violence to democracy and the rule the law in this way, it becomes harder to defend the concept of judicial independence from a pissed off citizenry.

The argument behind judicial independence is that we don't want external politics to sway the objective application of law. However, when the judiciary itself is imposing its subjective politics on the law, that argument collapses. If the judicial system is simply going to be another political branch, then it should either be more subject to our democracy or have its discretion curbed so it can no longer abuse its power to interpret the law.

In my state of Colorado, this NJ decision should just about ensure passage of three initiatives amending the state constitution with the intent of curbing our activist courts by defining marriage, term limiting judges and blocking most judicial meddling in the initiative process.
 

Oh, I just love the opinion. The court repeatedly admits that there is no fundamental right to marry in the NJ Constitution. Instead, because of the "equal protection" of Article I, Paragraph 1 of the NJ Constition homosexual couples must be afforded the same rights as heterosexual couples because they are "similarly situated" as the heterosexual couples.

This opinion completely undercuts your argument JB that it furthers the democratic process. The court says repeatedly that because of all the rights given to homosexual couples and the legislature's pronouncements of "equality" for gays and lesbians, the legislature is being unequal in its treatment of two similarly situated groups by not extending the full panoply of rights afforded to heterosexual couples. Well, they are only "similarily situated" because of the legislature's grant of certain rights. If the legislature had not done so, the court's main argument would fall flat on its face.

The court strips the legislature from making any democractic compromise on some set of rights for homosexual couples by basing its argument on the fact that some rights afforded necessitates all rights to be afforded.

Finally, someone please show me where the words "due process" or "equal protection" appear in the NJ Constitution, particularly, Article I. Oh wait, IT ISN'T IN THERE. No wonder liberals hate looking at the text. God forbid the interpretation of a Constitional provision bear ANY semblance to the text.
 

Thank you for your right wing trolling. Of course your state is free to amend its constitution in whatever way it sees fit.

Mr DePalma is even willing to subject the judiciary to the executive. Glad to be living in a backward Europeans country where we made a compromise to allow homosexual couples to marry (and to adopt children). Nothing turned for the worse.

I am still waiting for all this right wing fanatics to propose a constitutional amendment to outlaw divorces. Now that would protect the sanctity of marriage.
 

@humblelawstudent:
the court does not say that equal protetion is mentioned in the text. They say that equal protection is an unalienable right as mentioned in art 1 para 1.

The lower courts used precisely the same test. I didn't hear right wingers screaming foul then because the court decided that equal protection of homosexual couples was not a fundamental right.
 

Professor Balkin:

For the strategy to work, courts have to be upfront about what the constitutional concerns are but they also need to give legislatures room to debate the issues. In doing so, they invite legislatures to be partners in constitutional interpretation and implementation.

Are we reading the same opinion?

How was the Court upfront at all about the constitutional "concerns" which underly their rewrite of NJ marriage law? The NJ court disavowed that there was any right to homosexual marriage in the state constitution and then cited to prior legislation granting benefits to homosexuals as a ground for the Court to compel the legislature to enact homosexual marriage.

Apart from choosing whether to call this court created benefit "marriage" or a "civil union," exactly how has the court allowed the legislature to be a partner in enacting this court order? The court has ordered that the Legislature grant homosexual couples all the rights and benefits granted to married couples. That ruling pretty much ends the issue unless NJ amends its constitution to expressly reverse this bit of outlaw judicial legislation masquerading as "constitutional interpretation."
 

Anne,

Umm what? Your first argument is nonsense. It isn't "as mentioned in art 1 para 1." They take what they consider broad and expansive language from this paragraph 1 and say that this language means equal protection.

My point was that the NJ supreme courts interpretation of their Article 1 of their Constitution is strained at best.

Your second comment makes little sense. You wrote, "equal protection of homosexual couples was not a fundamental right."

Actually the court said the opposite. Homosexual couples are similarly situated to heterosexual couples and therefore entitled to all the rights afforded to heterosexual couples because there was no rational(or something similar term) reason for denying homosexual couples the full panoply of rights. The court just said that homosexual couples do not have a right to the word marriage.

So, your accusation is baseless. Even if your comment was correct, why would we complain? You accusation still makes little sense.
 

Anne said...

The lower courts used precisely the same test. I didn't hear right wingers screaming foul then because the court decided that equal protection of homosexual couples was not a fundamental right.

There is no fundamental constitutional right to homosexual marriage. A fundamental right is either written into the constitution or well established in our society for an extended period of time. Homosexual marriage does not come close to meeting either test. This is why the Massachusetts decision was so outrageous.

Rather, whether to extend benefits to marriage and not to other human relationships is a public policy decision for the elected branches. So long as our elected representatives have a rational reason to do so, the legislation is constitutional under equal protection law.

Marriage is the societal foundation for the procreation and raising of civilized children. Moreover, the partners in marriage enjoy a variety of mental and physical health benefits. The science in this regard is indisputable. Thus, the governmental purpose in supporting marriage is not only rational, it is arguably the most compelling governmental purpose outside of perhaps the defense of life.

This is why the VT and NJ "middle road" rulings which do not find a fundamental right, but claim that support of marriage alone is irrational, are so outrageous. Indeed, the VT and NJ rulings may be worse than the Massachusetts ruling because the former denigrate marriage and reduce it to a civil contract with a collection of benefits.
 

Surveys indicate that public attitude toward gay marriage changes based on question wording and whether the word "marriage" is used. Results like these (http://publicagenda.org/issues/red_flags.cfm?issue_type=gay_rights) suggest that many people are still wrestling with the implications of same-sex marriage, so surveys on this issue should be interpreted cautiously. Want to know more about what the public thinks about same-sex marriage and other issues surrounding gay rights? Check out Public Agenda’s Issue Guide on Gay Rights (http://publicagenda.org/issues/frontdoor.cfm?issue_type=gay_rights).

Public Agenda (http://publicagenda.org/index.cfm) is a nonprofit, nonpartisan group devoted to public opinion and public policy.
 

It isn't "as mentioned in art 1 para 1." They take what they consider broad and expansive language from this paragraph 1 and say that this language means equal protection.

My point was that the NJ supreme courts interpretation of their Article 1 of their Constitution is strained at best.


This court didn't initiate this interpretation. The NJ courts have for some time interpreted their Art. 1, para. 1 as including a guarantee of equal protection. Unless you want the current court to ignore that precedent, they clearly are bound to apply it.

Your second comment makes little sense. You wrote, "equal protection of homosexual couples was not a fundamental right."

Actually the court said the opposite.


You missed Anne's point. You made the argument I quoted above about the lack of an equal protection clause in the NJ constitution. Anne pointed out that she didn't hear conservatives complaining on that basis when the lower court applied an equal protection analysis but ruled against the plaintiffs.
 

Thanks for the clarification Mark. That was indeed what I was trying to say. My comments were penned down to quickly and I will probably get back to them later.

Let's begin with clarification about me. Anne is a male name is some parts of The Netherlands as well.
 

Mark,

I never said they just initiated this interpretation. I've read the case and the it notes their long ling of precedent. So, your point is irrelevant and Anne's comment is still wrong.

As to your second point (and second attempted defense of Anne), it to is completely irrelevant. First, conservatives didn't complain because the case wasn't on the rader. Second, the fact that the lower court used the equal protection analysis in its ruling against the plaintiffs is immaterial. It used the wrong reasoning to get the right result. So, I disagree with its reasoning. You prove nothing.
 

One last thing Mark,

No, I didn't expect the NJ court to overturn its own precedent. Liberal courts only do that when it interferes with their policy goals.
 

There is a critical difference between the Massachusetts opinion and the Vermont and New Jersey opinions, and that is that the key constitutional principles identified in Massachusetts do not allow for separate and inherently unequal treatment for same sex couples. The opinions from the Vermont and New Jersey courts do allow the state legislatures to enact civil union legislation and still satisfy the equal benefits and equal protection requirements of their constitutions.

The Massachusetts court wrote to the Commonwealth Senate in its opinion on a proposed civil union bill:

“The bill would have the effect of maintaining and fostering a stigma of exclusion that the Constitution prohibits. It would deny to same-sex ‘spouses’ only a status that is specially recognized in society and has significant social and other advantages. The Massachusetts Constitution, as was explained in the Goodridge opinion, does not permit such invidious discrimination, no matter how well intentioned.”

and

“Because the proposed law by its express terms forbids same-sex couples entry into civil marriage, it continues to relegate same-sex couples to a different status. The holding in Goodridge, by which we are bound, is that group classifications based on unsupportable distinctions, such as that embodied in the proposed bill, are invalid under the Massachusetts Constitution. The history of our nation has demonstrated that separate is seldom, if ever, equal.”

If we think the New Jersey court compromised on this principle for tactical reasons, should we think this is an appropriate compromise?
 

Let's begin with clarification about me. Anne is a male name is some parts of The Netherlands as well.

Sorry for the gender confusion. I guess that qualifies as irony in a discussion like this.

No, I didn't expect the NJ court to overturn its own precedent.

Then I don't understand why you bothered to argue previously that "someone please show me where the words "due process" or "equal protection" appear in the NJ Constitution, particularly, Article I. Oh wait, IT ISN'T IN THERE. No wonder liberals hate looking at the text. God forbid the interpretation of a Constitional provision bear ANY semblance to the text."

If that was just a generalized rant on the nature of courts, then you should have made that clear. It read like you were criticizing this particular court for that "sin".

I never said they just initiated this interpretation. I've read the case and the it notes their long ling of precedent. So, your point is irrelevant and Anne's comment is still wrong.

If, as I suggested above, you were just ranting (and that's fine, we all do it), then Anne can't be "wrong"; you would just admit you were ranting. If you are actually criticizing the current court on this basis, then Anne was right.

First, conservatives didn't complain because the case wasn't on the rader.

Fair enough up to a point.

the fact that the lower court used the equal protection analysis in its ruling against the plaintiffs is immaterial. It used the wrong reasoning to get the right result. So, I disagree with its reasoning. You prove nothing.

If binding precedent required that the lower court accept that NJ has an equal protection clause, I'm mystified at how you can say it used the "wrong" reasoning.
 

i started to write a long detailed analysis of why i thought the nj court properly applied precedent and didn't reinterpret a thing or engage in the dreaded "activism" that conservatives so hate (when the ruling is against their perceived interests), but after reviewing what was written, i realized that i had only one question i needed to have answered.

humblelawstudent, bart, any other conservative out there... realizing that the phrases "due process" and equal protection under the law" are specifically written into the new jersey constitution, do you really want to seriously argue that there is no such thing as due process and equal protection under the law in the state of new jersey?
 

oops... the previous note should have said "realizing that the phrases 'due process' and equal protection under the law" are NOT written in the new jersey constitution..."

sorry..
 

The Democratic-appointed justices bequeathed a version of Plessy v. Ferguson's "separate, but equal," while the Republican-appointed minority argued for a Brown v. Board of Education's "full equality." So "separate, but equal" rears its ugly head once again.

After the prior post repudiating Bush's "separate, but equal" education plans (immediately below), isn't there a principle of consistency here that is being shattered and betrayed? Or are special-pleading and question-begging no longer fallacies?
 

"we made a compromise to allow homosexual couples [in the Netherlands] to marry"

Out of curiosity, what was the nature of the compromise Anne refers to in his initial post?
 

phq,

Darn, you corrected yourself right as I was preparing to lambast you. ;)

As to your point, the NJ court ruling relied only on NJ equal protection, it didn't rely on the standard from the 14th amendment. Of course, NJ must apply "equal protection" from the 14th amendment, so of course "equal protection" exists in NJ, despite what the NJ Constitution says.

But, the 14th amendment Due Process is only the bare minimum. States are of course free to provides even greater rights under their own laws, as the NJ court has done. My argument is against their greater great of "equal protection." Neither the words "equal protection" nor similar phrases exist in the NJ Constitution. This creation of greater "equal protection" by the NJ courts is a farce. They have decided their Constitution doesn't go as far as they want it to go, so they just insert their own terms (and have for a long time). That is my point and now your question is answered.
 

should read, "their greater grant of 'equal protection'"
 

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phg said...

humblelawstudent, bart, any other conservative out there... realizing that the phrases "due process" and equal protection under the law" are specifically written into the new jersey constitution, do you really want to seriously argue that there is no such thing as due process and equal protection under the law in the state of new jersey?

That is not the point, or at least my point.

The problem is that no honest application of either due process or equal protection can find a fundamental right to homosexual marriage or find that the state does not have a rational reason for providing benefits to encourage marriage.
 

the State has not articulated any legitimate public need for
depriving committed same-sex couples of the host of benefits and privileges that are afforded to married heterosexual couples.


For me, this statement gets to the heart of the matter. It doesn't have the ring of "arbitrary violence to democracy" to me at all, but rather the equal application of the values which form its very core.

Historically, a majority wishes the minority to shut up, sit down, and throw away whatever dreams they have, whether it be equal opportunities to vote, to buy homes, or to gain benefits under the fiscal laws of the nation. The legislature is the slave to the majority; without it, a member cannot be elected, and a reality of the system is that good intentions and principles are often compromised by the overwhelming drive to be re-elected. The legislature will remain resistant to crossing the majority as long as there is a majority to cross.

Yet, at the same time, the strong individualist streak in our country recognizes that "all men are created equal" and has led to the adoption of the sort of equal protection clauses that come forward in this case. I agree with humblelawstudent when he says the invocation of Article I, paragraph 1 is a stretch, but clearly the precedent (and the 14th amendment) exists.

So, should we surrender equal protection by ensuring couples cannot apply for state-provided benefits where marriage is a criterion unless they are recognized as married by a majority of the populace (or simply heterosexual) or should we ignore the desires of a majority that would prefer such benefits be restricted?

I think the court did the right thing here by side-stepping the morass of marriage, which is fraught with religious overtones, and leaving definitions and terms to the legislature to fight over, while acknowledging the equal right of people to access government services, regardless of their sexuality.

I also think it's interesting that same-sex partners satisfy most of the requirements for a valid marriage under NJ state law, with the notable exception that the locale for obtaining a license is dependent upon gender-specific locations (i.e. the residence of the "female party.")

The solemnization required would be given gladly by a number of denominations. And if a minister deems a union to be a sacred marriage, what right does the state (or majority) have to refuse to recognize its sanctity?
 

pms:

The solemnization required would be given gladly by a number of denominations. And if a minister deems a union to be a sacred marriage, what right does the state (or majority) have to refuse to recognize its sanctity?

This is an interesting point. Let's explore it further.

Homosexual "marriage" is not illegal in any state of which I am aware. If a homosexual couple want to hold a ceremony, have someone preside over the ceremony, exchange vows and rings, and then proclaim to the world that they are "married," no one is going to throw them in jail.

However, encouraging homosexual couples to tie the knot was never the objective here. This entire legal offensive is meant to compel the vast majority of the country to recognize homosexual "marriage" and thereby to grant homosexual unions equal legal and social status with marriage.

That crosses the line from tolerance of alternative lifestyles to legal coercion by the courts to adopt a viewpoint with which I disagree.

If homosexuals who want to redefine marriage and pretend that they are married, live and let live.

However, I take great offense to having some court tell me and the vast majority of the rest of the country that they must legally recognize and subsidize homosexual unions as if they were marriage.

Setting social policy is most definitely not the province of the courts in a democracy.
 

I'm largely in agreement with the last comment (pmschicago) but do not know how it is a "stretch" for language that sounds like a paraphrase of the seminal paragraph in the Declaration of Independence (inalienable rights to liberty etc.) to be invoked here.

Are we to believe it is controversial to include "equal protection," and yes, "due process" here? Due process was a talisman right -- harkening back to the Magna Charta -- when NJ was first established as a U.S. state.

Putting aside the clause of the NJ Constitution that patterns the 9A (recognition of unenumerated rights), these two are rather obvious, no? And, given past federal and state precedent [with a nod to Glenn Greenwald, who cautions humility to those not familar with NJ law], homosexual couples have EP rights as well.

I also am sympathetic to the main opinion's approach. I do wonder though ... in effect ALL marriages are "civil" unions. PMS is right that "marriage" has a religious connotation (see, e.g., talk of "sacred" unions in the Griswold case), so singling out heterosexuals for its protection seems problematic.

Thus, the partial dissent that wanted to go all the way appeals to me. But, the law has various components to it, including pragmatic and so forth. Biracial marriage took time to be recognized by the courts too, even after Brown.

So, letting EP and due process develop a bit by allowing NJ to set forth "civil unions," esp. given their current law belies some compelling reason to discriminately not supply such securities, appears appropriate.

Again, Glenn Greenwald has some good remarks that go well with Prof. Balkin's here.
 

I reckon that quite a lot of "legal" fights ultimately include a "social" component. Thus, those that want state sponsorship of let's say prayer in schools want some degree of "social" acceptance too.

But, the courts can't do that. That's for society. The couples here wanted the state benefits of marriage. They can fight for "social" recognition w/o the state, and many people already recognize them socially.

As to the meaning of "marriage," I'm not sure where one wants to go with that. Back in 1961 or so, the Lovings were told "marriage" was divinely a matter of same color unions. In the 1870s, "marriage" was deemed to be a matter of males having some roles, females another. And so forth.

These were eventually deemed unconstitutional in various respects. Even though a majority of the people's representatives put them in place.

Once upon a time, "civil unions" would be seen as ridiculous. Now many find them perfectly acceptable. But, we are supposed to draw the line at "marriage," which has some special talismanic meaning.

Race-based? Of course not. Religion based? Of course not. Sex based? Sure. Why? Many still think that way. Talk about arbitrariness.
 

Ugh, this is getting tedious.

Joe,

The first two paragraphs of your first post don't make a good argument.

First, the Declaration has no legal significance, but I'm sure you know that.

Second, of course "Equal Protection" and "Due Process" apply to NJ. They come from the 14th amendment - but it is the federal standard that is relevant. The federal standard though would not support the NJ Court's argument and further, the NJ court doesn't attempt to base their reasoning on the 14th amendment.

Third, as previously reiterated, the NJ Constitution itself doesn't contain a "due process" (DP) or "equal protection" (EP) clause.

Isn't it very curious that somehow the NJ constitution which doens't contain its own EP and DP clauses could be twisted to provide greater "EP" and "DP" rights than a document (the federal Constitution) that explicitly provides for them? Especially, since the language in the NJ Constitution is a far cry from necessitating EP in particular.

Once again, I feel I must reiterate from an earlier post. Of course, EP and DP apply to NJ. It comes from the federal constitution. But, the grant of far greater EP rights by the NJ court has little basis in the words of its own state Constitution.
 

What will happen when the issue of same-sex conception using stem cell derived gametes hits the front pages? Won't we have to go through this all over again? I think we should give marriage rights if we allow the couple to conceive (and we do currently allow same-sex conception), and not give marriage rights if we don't allow the couple to conceive. You know, like we've always done.
 

I used the DOI as comparison given the similarity of the phrasing. Both speak of unalienable rights, and among those was generally understood to be due process and equal protection.

So the NJ courts ruled. The 14A easily can be interpreted to cover homosexual marriage rights, but it is not the matter at issue here.

It is useful to note that the 1844 (before the 14a) Constitution said:

"All men are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness."

I truly doubt, though an expert may convince me otherwise, that the drafters and people of the era did not think "due process of law" was included here.

Though the 1776 constitution only spoke of "common law" rights w/o such an broadly phrased security, that too probably included such a basic essential to "liberty" in the mind of the people of the era as due process of law.

The 1844 version, mirroring the 20th Century one, also said "This enumeration of rights and privileges shall not be construed to impair or deny others retained by the people."

NJ, as is the case by the federal courts, also does not take a strict original meaning approach, understanding these broad terms develop over time.

The 1844 constitution can be found here.

The 1776 one as well.
 

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The New Jersey Supreme Court has followed the Massachusetts Supreme Court, just in a disingenuous two step process to hide the cheese until after the election.

Did not anyone notice that the court invites with a wink and a nod gays to file new lawsuits requiring not separate but equal rights but full gay marriage rights ala the Massachussetts approach. Is there any doubt from the fact of this invitation that they will rule next year after the mid-term elections that they were wrong to defer even the name of gay marriage to the legislature.

I mean really to pretend this is somehow a compromise position because the NJ Supreme Court PRETENDS to allow the legislature to decide to call it gay marriage or civil rump raiding is just blatantly incorrect.

People here who write the blog and those who comment are all too well educated to overlook this obvious manipulation for partisan political purposes.

Just one more notch in the death of an independent judiciary. Election to limited terms via political party affiliated candidates is the only way to go. That might not have changed the New Jersey court results, but at least those who disagree won't feel they are under the thumbs of an unelected dictatorship. They will at least have the option of trying to elect judges with different views of the constitution to replace the ones whom they think got it wrong.

Says the "Dog"
 

I'd add two things.

(1) The old fashioned phrasing reflects an era where unalienable rights was used -- including by judicial review in various cases -- to protect substantive liberties. Ironically, given the critics here, often conservatives favored this approach more than "liberals."

The same purpose "due process" was later used in many cases. Again, often conservatives first noted the point.

(2) The phrasing in the NJC is rather open-ended, so yes, it is not surprising that it would have a broad reach. This is comparable to the 1A in the USC which is briefly phrased while many state constitutions spend much more verbiage to do the same thing.
 

Joe,

You are doing the verbal equivalent of talking just to hear yourself. Your two posts do nothing to further any argument on this subject or substantively counter any points I've made.

Yes, people have inalienable rights. Yet, as the court admitted, gay marriage isn't one of them. And, of course, DP and EP exist, irrespective of what the NJ Constitution says. But, this does not mean the NJ insertion of greater EP and DP rights is justified.

All you have done is show that the NJ Constitution has maintained language that conspicuously doesn't mention DP or EP.

The modern NJ Constitution was drafted in 1947. For your argument to work, one would expect them to have used DP and EP language or something similar.

From what I can tell from a few cursory reviews, the NJ precedent stipulating DP and EP in the NJ Constitution primarly comes after the 1947 Constitution. (But of this, I'm not positive). However, if true, it puts a serious dent in your argument.
 

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"Bart" DePalma has the grace to lecture us all:

Are we reading the same opinion?

Not the right question to ask. People need to remember that "Bart" sees things everywhere that other people can't see, thanks to the RepublicanVision™ glasses he wears. So the appropriate question is to ask "Bart" what he's "seeing" when he purports to be reading that opinion.

How was the Court upfront at all about the constitutional "concerns" which underly their rewrite of NJ marriage law? The NJ court disavowed that there was any right to homosexual marriage in the state constitution ...

Not quite. They stated that there was no such "fundamental" right. But that's not what the case turned on. The decision ended up being and "equal protection" one.

... and then cited to prior legislation granting benefits to homosexuals as a ground for the Court to compel the legislature to enact homosexual marriage.

No. As I pointed out earlier, "Bart" sees things we can't see.

Apart from choosing whether to call this court created benefit "marriage" or a "civil union," exactly how has the court allowed the legislature to be a partner in enacting this court order?...

Prof. Balkin explained this, but "Bart" didn't "see" it. By telling the legislature that the right at issue here was to be treated the same, the legisature is told what it can and cannot do in crafting specific rights for same-sex couples.

The court has ordered that the Legislature grant homosexual couples all the rights and benefits granted to married couples....

Bingo, Sherlock. Maybe "Bart" does "get" it in some vague and fuzzy way, but it just hasn't crept into his conscious understanding in a way he can vocalise coherently yet.

That ruling pretty much ends the issue unless NJ amends its constitution to expressly reverse this bit of outlaw judicial legislation masquerading as "constitutional interpretation."

"Bart" means unless they amend "equal protection under the law" out of the constitution ... but he doesn't know it.

Cheers,
 

"The Dog" says:

Did not anyone notice that the court invites with a wink and a nod gays to file new lawsuits requiring not separate but equal rights but full gay marriage rights ala the Massachussetts approach....

Well, certainly I seem to have missed that invitation. I suspect that "The Dog" had RepublicanVision&mark; spectacles as well....

Is there any doubt from the fact of this invitation that they will rule next year after the mid-term elections that they were wrong to defer even the name of gay marriage to the legislature.

Depends on what the legislature does. Whatever it does may not put together a different bundle of rights for people similarly situated. The legislature could take the state out of the "marriage" business entirely, leaving that to the churches and other religious organisations, and simply create a civil relationship, available to all, called a "domestic partnership" or such. They explained that, but perhaps "The Dog" is hard of reading.....

Cheers,
 

"Bart" DePalma says:

Marriage is the societal foundation for the procreation and raising of civilized children....

Doesn't always work that way. Witness "Bart".

... Moreover, the partners in marriage enjoy a variety of mental and physical health benefits....

Which is apparently why "Bart" thinks it's sooooo important to keep those icky gays from getting married.

The science in this regard is indisputable.

Just a clue for the passers-by: "Bart" is even more clueless about science than he is about law, though that seems hardly possible. He joined the maladministration in criticising the recent Nature paper on Iraqi war deaths, for instance. The big objection: The numbers are not those he believes to be true. BUt granting him his assumption here on the science, one wonders how he can then argue that gays should not have the equal protection of such claimed benefits (along with any legal benefits identified by the court in this decision).

Cheers,
 

Hey, I want some Republican Vision glasses! Where can I get some?
 

Arne,

Not to get off-track here, but you're little attack on Bart's "Science" is off the mark. First, the article was in the Lancet - an English medical journal - not Nature. Second, the report has been highly criticized by many highly regarded statisticians and others that do such work. The numbers of Iraqi dead is high, but this report is a very poor bludgeon to use against Bart.

Of you two, your use of the "science" is by far the worse. At least Bart expresses a skepticism, you instead portray a blinding obedience to a study that is questionable at best.

Note: I assume this the Lancet study is the one you are talking about. There could be a different one that I haven't heard of, but I'm doubt it.
 

Arne,

For your benefit, here's a link to an article by Fred Kaplan who takes a good look at the study. This article is hardly dispositive, but like the good "science" person you are, you should appreciate additional evidence upon which to judge your claim.
http://www.slate.com/id/2151926/
 

Setting social policy is most definitely not the province of the courts in a democracy.

Unless its a social policy you agree with.
 

Arne, do not lower your selve to the standard of a right wing attack dog, by attacking the messenger. As long as you were mocking Bart it was quite funny, the personal attacks... not so much.

And I should apologize to at least humblelawstudent, who - while I totally disagrees with him - isn't a troll, but tries to proof his point by legal reasoning.
 

Bart: Setting social policy is most definitely not the province of the courts in a democracy.

First, a shout out to Arne for riding you as you so richly deserve. I had to swear off of Balkinization for a couple of days entirely because of the increasingly compulsive desire to rebut your eternal question begging. The old saw about not feeding the trolls is as apt here as anywhere.

But today is another day, and this thread seems to still be going hot and heavy and so I'll take a moment to point once again to your bigoted condescending question-begging. You say, "This entire legal offensive is meant to compel the vast majority of the country to recognize homosexual "marriage" and thereby to grant homosexual unions equal legal and social status with marriage." Perhaps this kind of trash talk works in front of juries, or with your fellow ditto-heads, but in the real world you've just tried to manufacture, whole cloth, a difference between "marriage" and "homosexual marriage." Puh-lease.

Where marriage is a sacrament of a given religion the state has zero business poking its nose in; zero. All the so-called "policy" reasons are born of an unthinking adherence to and perhaps (to be charitable) unconscious prejudice in favor of bigoted, patriarchal views of family evolved during the agrarian age as a means of consolidating property rights---including, in those wonderful bygone days, such property as children, wives and chattel slaves. Like many of our traditions literally outlawed by our Constitution, the imposition of State regulations on marriage is something we should long since have risen above.

More important for today's arguments, however, are two very different aspects. The most obvious is that by polarizing this issue your partisans keep behind them the voting block best represented by statements such as Falwell's claim that gays caused nine-one-one (and let's not even mention Dinesh D'Souza's new book.) The other force at work here is commerce: Businesses, especially the insurance industry, do not want to pay for anything they don't have to, and the convenient fiction that the state can say who is "really" married and who isn't just happens to serve those business interests by allowing businesses, especially insurance companies, to deny rights and services to people who don't practice the right religion.

The just and moral answer is that the rights commonly thought of as "marriage" rights need to be analyzed so the religious aspects can be completely removed. Our current policies clearly establish a limited set of Christian practices as the preferred religion, but our Constitution (written by deists and atheists) clearly is meant to avoid such evils as establishing or favoring religions. Maybe you were at a Falwell or Robertson prayer festival the day they covered that in law school?
 

"Bart" DePalma sees things us mortals can't see:

The problem is that no honest application of either due process or equal protection can find a fundamental right to homosexual marriage or find that the state does not have a rational reason for providing benefits to encourage marriage.

The court never said the state did not have a "rational reason for providing benefits to encourage marriage". What the court did say was they had no rational reason to deny those benefits (if any) to gays. Take off your glasses; maybe you'll see better ... and stop constructing "straw men".

Cheers,
 

"Bart DePalma" makes his animus clearer:

However, encouraging homosexual couples to tie the knot was never the objective here. This entire legal offensive is meant to compel the vast majority of the country to recognize homosexual "marriage" and thereby to grant homosexual unions equal legal and social status with marriage.

Nice of "Bart" to tell others (as a collective, maybe even a Borg, no less) what their "objective" is. But aside from the Herculean feat of making others have certain desires, "Bart" also lets slip his unique theory that the courts have the similarly awesome powers to convey "social status" as a remedy in a lawsuit. Now if we could just get "Bart" to teach us these tricks, we could use them to induce some more "proper" thinking in "Bart"'s muddled cranium....

Cheers
 

"Bart" DePalm says:

However, I take great offense to having some court tell me and the vast majority of the rest of the country that they must legally recognize and subsidize homosexual unions as if they were marriage.

Wow. Now that Vermont and Massachusetts have insttued these burdensome and inequitable policies, I guess we need just wait for "Bart" to file suit for redress of the wrongs done him. I'm particularly looking forward to the part where "Bart" has to allege a concrete injury-in-fact. Ought t be good for a chuckle.

Cheers,
 

humblelawstudent:

Not to get off-track here, but you're little attack on Bart's "Science" is off the mark. First, the article was in the Lancet - an English medical journal - not Nature. Second, the report has been highly criticized by many highly regarded statisticians and others that do such work. The numbers of Iraqi dead is high, but this report is a very poor bludgeon to use against Bart.

Mea Culpa. It was indeed the Lancet, not Nature. I stand corrected, and apologise for any false implications my mistake conveyed.

As for "the report [being] highly criticized by many highly regarded statisticians and others that do such work", feel free to trot out such. I'd note that no such report that I've heard of has said that the estimated numbers are wrong (IIRC, the few reports I've heard about suggested that the confidence interval may be wider), but here you're free to correct me again ... if you can.

OTOH, "Bart"'s objection to the methodology consists entirely, as I stated, with complaining that the numbers are wrong.

But do tell: How is the report flawed? Are they not properly accounting for possible statistical clustering of deaths in their sampling procedure? Does the sampling lead to less variance within their sampling clusters than the authors assume in their methodology due to this? Please do enlighten us. Keep in mind that the definition of "highly regarded statisticians and others" is not "those that agree with my own conclusions" (particularly those that are not versed in statistics methodology.

Cheers,
 

humblelawstudent:

Of you two, your use of the "science" is by far the worse. At least Bart expresses a skepticism, you instead portray a blinding obedience to a study that is questionable at best.

Feel free to trot out the part where I've expressed "a blinding obedience to [the] study". "Bart" expresses scepticism, but gives no scientific objections for so doing. I have expressed here neither scepticism nor "blinding obedience". My sole point was to state (truthfully) that "Bart"'s scientific methodology consists solely of scepticism towards numbers he doesn't like. Feel free to correct me if you think he has done anything more than that.

Cheers,
 

anne:

Arne, do not lower your selve to the standard of a right wing attack dog, by attacking the messenger. As long as you were mocking Bart it was quite funny, the personal attacks... not so much.

I'm sorry if you were put off or took offence. I certainly wasn't trying to "attack[] the messenger" in the sense of argumentum ad hominem. My comments on his capabilties and character (or lack thereof) are more descriptive in nature, and not offered for the proof of any particular assertion of mine. I'd note, however, that unlike rhetoric and/or scientific discourse, the law considers attacks on the person to be a valid technique. Part and parcel of the rather strange twist of law to hold as the highest form of truth the things that witnesses say in court. Unless you get a witness to swear to it, you can't get a jury to believe that the sun rises in the east, and if someone else says something different, it's a toss up, who do ya believe? (at least so goes the theory, and if they find juries "fact-finding" for themselves, they slap them for it....).

BTW, IANAL ... but I did stay at a law school last decade.

Cheers,
 

humblelawstudent said:

For your benefit, here's a link to an article by Fred Kaplan who takes a good look at the study. This article is hardly dispositive, but like the good "science" person you are, you should appreciate additional evidence upon which to judge your claim.

http://www.slate.com/id/2151926/

Hmmmmm. <*clicks and peeks*> Fred Kaplan. Don't remember his from my sadistics days.... Hmmmm: "However, the more I read the study and the more I talked with statisticians, the flimsier this number appeared...." He's not a statistician. And furthermore, part of his scepticism is that he doesn't believe the numbers. So many "scientists" crawlng out of the woodwork .... who to believe, who to believe?

Cheers,
 

humblelawstudent:

Apparently one claim of one of the naysayers is that the samples were biased in favour of "main street"
locations (or the vicinity thereof). A further claim is made that in such areas casualties would be expected to be higher in a war, leading to not only greater uncertainty due to non-random sampling, but also a bias which would affect the mean estimate of the survey results. Asuming arguendo there was indeed such a non-random sampling, I'd just note that those that made this assertion also made this one:

"Main street bias inflates casualty estimates since conflict events such as car bombs, drive-by shootings artillery strikes on insurgent positions, and market place explosions gravitate toward the same neighborhood types that the researchers surveyed.

I'm just curious to what extend this increase in deaths occurs. Is it 21% higher? 57% higher? What are the confidence intervals for this phenomenon? Sample size? Ohhhhh ... right ... they'r making this up on the spot! (This is "science by press release" ... you know ... Pons and Fleishman territory)

So that's the nature of these "highly critic[al]" scientific refutations by statisticians and others , eh?

Cheers,
 

Please address the issue of conception rights for same-sex couples. Do you feel that a person should have the same right to conceive a person with a person of their own sex as they do with a speron of the other sex?

Or do all people only have a right to join their gamete with someone's of the other sex? That is the only healthy, safe and non-exploitive way. The costs of developing same-sex conception are too high, and there is no need to develop it, it cures no health problem yet subjects kids to huge risks (not to mention all the animals that suffer). It is not a health problem.
 

John Howard, of Egg and Sperm: Or do all people only have a right to join their gamete with someone's of the other sex?

John, if you are mid-conversation and folks thereby have context to know you are being understated in your approach, then phrasing your opinions as questions might be acceptable. The above doesn't really seem to fit that criterion. What interests me most about your presupposition is that, technically, even this right which you believe is the "only" right "all" people have on the matter is not protected anywhere in the Constitution---leastways I don't recall any mention of procreation of any sort in that venerable document. Would an honest originalist then be forced to conclude the Constitution does not protect anyone's right to procreate?

Instead of asking rhetorical questions to which your mind is made up, how about telling us, honestly and openly, where you stand and why? I haven't given the matter much thought;it seems you have. Educate me, without assuming I agree or disagree. We'll both be better for it.
 

:) I've been trying to bring these marriage conversations up to date, most people are completely ignorant of what is going on in the labs these days: We now have to consider if there is a right to conceive children from two males or two females. I agree with most ethicists that we should prohibit all forms of conception that are not joining a natural egg and a natural sperm, ie, the way we all have been conceived so far. There's lots of links on my site for more info.

It was Skinner that found that there was a "basic civil right" to "marry and procreate", and by that they meant that people could not be sterilized by the state or kept from marrying by the state, but not that everyone had a right to be set up with a spouse or given free assistance. Loving then built on Skinner to say that everyone could marry the person of their choice, unless there was a supportable basis to prohibit that relationship (siblings, children, etc). I believe that the risks of genetic problems and the costs associated with developing same-sex conception are a supportable basis to prohibit same-sex marriage.
 

John Howard trots out an old, tired "straw man" (amongst the two or three others I won't address now):

I believe that the risks of genetic problems and the costs associated with developing same-sex conception are a supportable basis to prohibit same-sex marriage.

My, my, my. I do believe that Mr. Howard would, were he able, deny me and my fiance the right to marry. How very generous of him. Maybe he'd understand a little better if I expressed a desire to prohibit him from breathing, as his respiration offends my sensibilities and does seem -- to me, which is the only thing that counts, of course -- a travesty on the Laws of Nature and of Nature's God. Plus, it's too damn expensive and risky letting him inhale.

Cheers,
 

"I believe that the risks of genetic problems and the costs associated with developing same-sex conception are a supportable basis to prohibit same-sex marriage."

This doesn't really follow. Now, let's say you are right about the wrongness of conception other than sperm/egg. I reckon some still think in vitro is wrong; it surely was deemed dangerous once upon a time. But, fine.

The issue is a means of conception. It is not a means only same sex couples wish to use. I assume cloning and the like is at issue. Given some people want to clone their cats these days, it is not too surprising various heterosexual couples wish to use this means of conception.

So? Currently we also disallow incest partially because we fear the biological effects. This is not a reason to ban marriage per se. As noted, heterosexuals of many varieties might want to use "atypical" conception means deemed unethical. We stop them. They still get married.

Homosexuals have many other means to have children. Many have them already. Many adopt. And so forth. And some don't have any. Why some possibility they might "conceive" in an unethical way is a barrier (they could do so even if they don't get civil marriages anyway, if it was possible) is unclear to me.

Finally, I note it is conceivable (lol) that heterosexuals might have some condition that makes conceiving problematic. We do have blood test rules in various states, for instance to guard against certain diseases. I think this might be unconstitutional under current law but fine.

Would het couple #1 be barred from marriage if one member had some dangerous maladay that would likely lead to birth defects or worse? Arguably. But, this wouldn't stop all the others from marrying.

[In fact, some states allow let's say cousins to marry after a certain age when children would no longer be an issue. Thus, even here, the law -- dubious as it sounds on its face -- would have to be narrowly tailored.]

There surely isn't a rule in place to guarantee totally safe conception right now. Not to be upsetting, that sounds a wee bit like eugenics. Same sex cloning is far from the only "dangerous" means of conception that can arise these days.
 

Yo, Arne: I asked John to openly say where he was coming from. Dialog requires we each give an ear. Do I agree with him? Not remotely. Do I want that diagreement to escalate to personal attacks? Not remotely.

John, even if "most" ethicists agree, that doesn't make them right. The ability of majorities to be wrong as to fact is a major defect of democracy in general. I think the science you fear is inevitable; cloning, same-sex conception, these things will happen, here or elsewhere. The question becomes what to do about it. Your answer is to oppose it; that is your right. I think there are probably better things to put your effort into, but that's your call, not mine.

The notion of rights itself might need a bit of exploring to do any good with your topic. I'm disinclined to think anyone has an inalienable right to anything that costs too much; "there ain't no such thing as a free lunch." But certainly there's nothing about being lgbt that should result in having fewer rights than others. So if this bio-tech becomes commercially available (and that seems unavoidable) then these people certainly have as much right to it as any. Put the other way around, there's nothing about the looming reality of this bio-tech that reasonably argues against marriage rights for lgbt. Trying to tie the one to the other seems really off base to me.
 

[holding breath] - I'm saying you don't have a right to conceive with another man, because of the risks that the baby would be subjected to. There is no way to justify subjecting a person to such high risks of life-long suffering (longer-than-life, even, they might show up in your grandchildren too).

This isn't a straw man, there are actually scientists working on this stuff, and apparently people who would hire them. And the risks aren't a straw man, all the science so far is consistent - the baby would almost surely die.

Civil Unions could have all the rights of marriage but not have the conception rights that all marraiges have, and that distinction would make it much easier to get federal recognition of same-sex relationships and civil unions passed in all fifty states. That is surely a good compromise, no? We could still call your civil union a marriage, you could still have a wedding, but technically, it would officially be a civil union.
 

"You are doing the verbal equivalent of talking just to hear yourself. Your two posts do nothing to further any argument on this subject or substantively counter any points I've made."

It helps when you refuse to respond to the arguments. Still, pretty skillful to say so much and provide "nothing" (even the 1844 link showing the old time nature of the clause in question? sigh) of value to this discussion.

[In the book "Justice Accused," the 1844 language that mostly remains the same is described as a "free and equal" clause and was so understood by many even then. The ability for this view to gain wide acceptance over time is therefore rather uncontroversial.]

The idea that to interpret the Art. I. language re inalienable rights to cover two rights (EP/DP) that traditionally was deemed fundamental (one since the times of King John) to "liberty" is so patently absurd that you find it silly to even refute it with more than your ipse dixit is not credible.

It might be argued, though I'm sorry to say I don't see where this argument someone suggested you offer actually really is present, but you need to work a bit harder at it. I know it's tedious, but such is the law.
 

Robert Link:

Yo, Arne: I asked John to openly say where he was coming from. Dialog requires we each give an ear. Do I agree with him? Not remotely. Do I want that diagreement to escalate to personal attacks? Not remotely.

Hardly a "personal attack". Mr. Howard is apparently of the opinion that my marriage would be a risk and a cost ... to him. This follows logically from his conclusion that gays shouldn't be allowed to marry because of something that they might conceivably do (but are certainly not in the least compelled to do, should they marry). His conclusion is absurd, and is a thin veneer for an animus towards the behaviours (and the rights) of others that he probably finds offensive. I was just replying in kind, and I'm a bit surprised you don't find his implicit desire to forbid my marriage (thankfully, there's saner heads that see that such would be absurd and who haven't acted to prohibit my planned wedding) to be a bit -- well, shall we say -- "personal"....

I really have little patience for dishonesty, and Mr. Howard shows either that or a blind indifference to the elementary forms of logical inference.

He was asked to state his views forthrightly, and he didn't. I think the dialogue (or any possibility thereof) is dead and buried as far as he's concerned.

If we do indeed want rational discussion here, we need to insist on a minimum baseline.

Do go see his website (link above) if you're curious where he's coming from. That will probably explain his viewpoint better than he is doing himself here, and will also give you a clue as to the fruitfulness of any potential discussions.

Cheers,
 

John Howard said:

[holding breath] - I'm saying you don't have a right to conceive with another man, because of the risks that the baby would be subjected to. There is no way to justify subjecting a person to such high risks of life-long suffering (longer-than-life, even, they might show up in your grandchildren too).

To be consistent, then you'd have to ban blacks from marrying (not only miscegenation, but intra-racial marriages) because if they did decide to have offspring, there's a known higher risk of sickle cell anemia, higher risk of CPD, etc. (and not the just the hypothetical and speculative "risks" for SSC that our purported 'scientifically minded' Mr. Howard insists, abesnt any actual evidence, are so grave here). And then the Jews would be banned from marriage, because of Tay-Sachs, anonanonanonanon. Only the "perfect" couples, with the "proper" pedigree, would be allowed to marry and then to breed (as they must, as a post-condition of the marriage; after all, what else is marriage good for?). Yes, folks, we're talking eugenics big time. No forced sterilzation, nosirree, Mr. Howard has the "perfect solution" (or is that "final"?): Let's prevent risky conceptions by banning marriage. After all, out-of-wedlock births are unheard of ... in any state that takes their "risk management" seriously and institutes the requisite Department for the Promotion of Virtue and Prevention of Vice ... no, that sounds wrong ... sorry, Department of Bedroom Security.

These thinsg have been pointed out to Mr. Howard by myself (albeit in colourful language) and others; he's just not listenting.

Mr. Howard's line of "argument" is wrong on so many levels that there seems to be no real risk of "dialogue" here, Robert.

Cheers,
 

John Howard explains himself:

Civil Unions could have all the rights of marriage but not have the conception rights that all marraiges have, ...

Ahhhh. IC. Dunno what state Mr. Howard is from, but mine hasn't gotten into the business of handing out Baby-Making Licenses ... yet. Because this is what he's suggesting, despite his attempts to confuse isssues by calling it "marriage". I'm just a tad curious as to what penalty he would suggest for unlicensed baby-making. Forced abortions, you think? That approach would certainly reduce the "risk" of some unapproved offspring having to suffer through a lifetime of suffering thanks to the unconscionable, risky actions of some irresponsible and criminal parents. I'm sure that such licenses would expire on one's 30th birthday as well ... trisomy 21 and other such "risks", you know....

Why do I keep thining of Atwood's book "The Handmaid's Tale"?...

And why, after reading of Mr. Howard's exploits on his little blog, do I think we're infested with a certified nutcase here?

But no matter: Mr. Howard doesn't seem to attracting anyone outside of other certified nutcases to his cause celebre, tilting away so merrily at the windmills of his mind....

Cheers,
 

Arne: Do go see his website

Actually, I linked to it earlier. You can infer from that that I visited it. ;) And to be clear, I stand four-square for your right to choose a partner as best suits you, even while John doesn't. But at the same time I assume, until proven wrong, that unlike others on this thread, John is willing to engage in dialog. We may or may not sway him, but he's been willing to be open and clear. While my beliefs seem likely to fall closer to yours, Arne, than to John's, I nonetheless hold that intellectual rigor and honesty require that I at least try to engage John fairly on his own terms. So far such efforts have been met fairly, so far as I can tell. Yes, I understand that his positions are offensive to you, and that pains me, but for now at least I have to try to stradle that fence and give as good as I have got. Fair?
 

Did a bit more digging as to NJ law, taking some cites given by the ruling and following them.

At issue here (per a 1892 ruling) is a "general recognition of those absolute rights of the citizen which were a part of the common law." [I mentioned this myself btw, referencing the 1776 constitution.] The case in particular noted that voting rights aren't included.

STATE OF NEW JERSEY, ex rel. STATE BOARD OF MILK CONTROL (1935) did find it patently obvious that due process was secured by Art. I. As to an argument the the 14A did not apply, it said that either way, the state provision covered it.

I truly doubt this was not the law in NJ in later 1800s as well. One assume maybe the 14A affected things, but independent state development of "due process" has also been addressed by discussions of the era.

Robinson v. Cahill (1973), admittedly more recent, recognized equality (considered part of due process back in the 1930s anyway) in part by referencing the DOI:

"The concept of equal protection antedates the Fourteenth Amendment. It is implicit in a democratic form of government. The Declaration of Independence proclaimed that 'All men are created equal,' which must mean equality at the hands of government"

Circling back to 1892, therefore, equality is an inalienable right as compared to something like voting. Late 19th Century rulings also cited things like free speech as inalienable, to point to the general language being used.

Marriage too was deemed by many to fit here. FWIW.

Oh, there also is a NJ ruling that guarantees a right to marry if you are a certain "sex" pursuant to a sex change operation. This might touch upon the other thread of argument covered here via John.

Hope this has been of some value. If not, so be it.
 

And to be clear, I stand four-square for your right to choose a partner as best suits you, even while John doesn't.

Wait, a partner for what? I fully support Arne's right to choose a partner for all of the things that up until now have been under discussion. I fully support civil unions that would be exactly like marriage in all of the ways that we have been discussing marriage so far.

But up until now, we haven't been talking about conception rights. I think that if Arne wants to conceive a child, he should have to join his sperm with a woman's egg. In that sense, the partner he chooses to be the other biological parent of his child should have to be a woman.

Arne, do you really think it is so crucial that you have a right to conceive with your fiance? Think of the burdens that would put you under, and your child under, due to the huge risks of birth defects. Don't try to compare it to a black couple's risk of sickle cell anemia - if you haven't noticed, there are lots of black people, so it must not be so unhealthy for black people to have children together. And they don't - as a rule - require any sort of expensive and experimental procedure that is known to be extremely risky and unpredictable in order to have children.

I want things to stay the same as they are right now, I want people to be able to attempt to conceive with the person of their choice, with the exception of some public relationships (note: public, as in family relationships, age, marital status, and now sex. So your concerns about only allowing perfect pedigree marriages are misplaced. Medical conditions and genetics are private and would not be a supportable basis to not allow a couple to marry. They would apply to individuals and therefore violate their basic civil right to marry and procreate.)

The idea, Arne, is to not let any labs try to create people through genetic engineering. This would restrict a male-female couple that wanted to use modified gametes also, and this would restrict heterosexuals that wanted to join their gametes with another person of their same sex. It would mean that everyone is allowed to conceive with a person of the other sex, only.

As for which course leads to the bad things you mention, like eugenics, handmaids, etc, I welcome the conversation. I think we should all be allowed to have natural children, and that is the way to avoid eugenics, handmaids, etc. You think you should have a right to use genetic engineering to try to conceive an embryo and hire a surrogate mother to carry it to term - and the interesting thing is that your dogma implies that that is the ONLY way you have a right to have children. Or will you agree that you have a right to have natural children just like I do?
 

Put the other way around, there's nothing about the looming reality of this bio-tech that reasonably argues against marriage rights for lgbt. Trying to tie the one to the other seems really off base to me.

Robert, imagine if it were prohibited. Would a marriage that was prohibited from conceiving children be equal to one that wasn't? If your spouse is a woman, your marriage would have a significant right that it wouldn't have if your spouse was a man.

And I've noticed that everyone who claims I'm crazy or that it isn't tied to marriage anyways, is always in favor of allowing same-sex conception. You insist on it, do you not? Don't try to pretend you don't have an opinion, would you vote for a ban or not?
 

Robert Link:

We may or may not sway him, but he's been willing to be open and clear....

I disagree. The "dialogue" started with a 'leading' question from him, designed to sucker any respondent (or so he thought) into a forced repudiation of gay marriage. Kind of a rhetorical "push poll", if you will; see this comment: "Or do all people only have a right to join their gamete with someone's of the other sex? That is the only healthy, safe and non-exploitive way."

... While my beliefs seem likely to fall closer to yours, Arne, than to John's, I nonetheless hold that intellectual rigor and honesty require that I at least try to engage John fairly on his own terms.

You mean on the tilted field of dishonest argumentation? I'm not sure I see the point.

... So far such efforts have been met fairly, so far as I can tell. Yes, I understand that his positions are offensive to you, ...

My complaint isn't that they are offensive to me; it is that they are dishonest. This in itself wouldn't be much of a problem if Mr. Howard restricts himself to printing and passing out thousands of fliers about non-existent threats to humanity and enduring the occasional ignomity of getting booted by even the folks currently vying for the bottom rung on campaign behaviour standards, the Republicans. That is his right as an American (as long as he doesn't go completely berserk and start emulating the likes of Rudolph or James Kopp).

... and that pains me, but for now at least I have to try to stradle that fence and give as good as I have got. Fair?

Overly so. See:

And to be clear, I stand four-square for your right to choose a partner as best suits you, even while John doesn't.

For the record, that partner is female, and I am male.

The problem, which should be clear, is that Mr. Howard's 'logic' (such as it is), is to adandon the more pedestrian RW arguments as to the "rational basis" needed for gummint discrimination when not dealing with "suspect classifications" (e.g., the Cleburne case). Such "rational bases" ("children are better off with both a mommy and a daddy ... and while we're at it, a $10 million inheritance and private schools, I guess") are not getting the traction they need for banning gay unions, and for many very good reasons, some of which I and others have touched on here. Mr. Howard seemingly wants to shock the conscience of the hoi polloi with visions of teratomatous disfigured hunchbacks, all beause we've let Dr. Frankenstein into the lab in our quest for "equality". Never mind that his 'scientific' claims are -- to say the least -- far too premature, and can be handled appropriately if and when they arise. That is debatable (but I've often found that debating science with the likes of Mr. Howard is pointless; check out trollers at The Panda's Thumb for examples of that.

The real dishonesty by Mr. Howard is to then, even assuming arguendo there is a valid basis for regulating the ominous "SSC", to suggest that banning gay unions is a "rational" response to this threat. While we're not dealing with a suspect classification such as race here (and perhaps one day sexual orientation will join race as such a "suspect classification"), and don't have to satisfy the high standards of "strict scrutiny" for the government actions Mr. Howard proposes, the sweep of Mr. Howard's prohibitions are both overinclusive (in regulating those that have no desire for SSC), at the same time underinclusive (in not regulating those that might seek the same while not married, not to mention those that have known risk factors for conceiving such as Tay-Sachs, etc.), and are not narrowly tailored to meet what Mr. Howard would like to pretend (far in front of any actual facts or evidence) is a significant gummint interest.

Mr. Howard, both on his blog and here, suggests a 'reasonable' compromise: That gays be allowed to have civil unions, and that marriage be essentially redefined as a right (or license) to bear children:

"I propose a compromise to resolve the marriage debate that I think everyone should support. It is based on the univerally acknowledged need for same-sex procreation to be thoroughly examined and declared safe before allowing any lab to attempt to create a person that is not the union of a man and a woman. Until same-sex conception is declared safe and acceptable, same-sex couples should not have a right to attempt it, and this difference in rights from both-sex marriages (which all have a right to attempt to conceive) would simply be acknowledged in name. If and when same-sex conception is considered safe and Congress decides to allow same-sex couples to attempt to conceive, they will do that by changing same-sex civil unions to marriages. Marriage will continue unchanged, always granting the couple conception rights."

This is disingenuous. No one has ever shown OSC to be "safe" (and for good reasons an ob-gyn knows every time they pay their insurance premiums; it isn't). We even let scientifically trained experimentors perform OSC under conditions far less ideal than in well-equipped and clean laboratories. Thus my objection to Mr. Howard's 'logic': He should want to ban my marriage, assuming that I would indeed attempt to have children (and ignoring the physical impossibility even were I to have that notion), simply because older women (and older men) are known to have a far higher risk of many birth defects.

I think the "compromise" is offered in bad faith. He says, "sure, when you prove that you can do it safely, we'll let you marry". This proof is demanded of something that is closer to little green men on my doorstep than to anything that's ever actually happened. It's disingenuous (and discriminatory, for the reasons stated above). The end result of his 'compromise', though, is to achieve the banning -- should his 'argument' prevail -- of gay marriages until we finally do under controlled conditions that first alien autopsy. I think that this (outside of his paranoia and other "issues") is the real impetus for his intrusion here and elsewhere. This is dishonest, and should be treated as such.

Cheers,
 

Oh, btw, that scenario, of married people being prohibited from procreating if we allow same-sex marriages but then prohibit non egg-and-sperm conception, is the most dangerous as far as leading to eugenics and handmaids. That is the scenario that would officially strip conception rights from marriages and allow the state and/or labs to not allow a married couple to conceive together (assuming they need assistence of a lab) because they might have a high risk of a disease.

Marriage is what protects our conception rights, it is the only thing that protects our conception rights, and so it cannot include couples that are prohibited from conceiving without changing it and putting all of our conception rights in jeopardy.
 

John Howard is clueless:

I think that if Arne wants to conceive a child, he should have to join his sperm with a woman's egg. In that sense, the partner he chooses to be the other biological parent of his child should have to be a woman.

Well, if I was of that wont (which I'm not, but which you refuse to address), how about if I wanted to join one of my sperm with a woman's egg from a man? Or join one of my woman's eggs with a man's sperm? Wouldn't that be OK by you? Why this strange insistence that my intended partner be of a certain gender when in fact the relevant distinction for you seems to be the type of gamete?

If all you care about is SSC (and perhaps the impending invasion of LGM as well), what are you doing here? C'mon now; be honest. You can come clean, we're all friends here (even if some of us have thought it appropriate to restrict the manner of your inspiration ... well ... because ... because we thought it would bring countless blessing to humanity and it's for the greater good).

Don't forget to check your closet before bed tonight....

Cheers,
 

John Howard:

Arne, do you really think it is so crucial that you have a right to conceive with your fiance?

Ummm, nope. Actually, that was my point, although it surprises me not he least that you missed (or ignored) that.

As both hinted at and pointed out explicitly, if you want to deal with problem X, you should regulate problem X, not "straw man" Y (and perhaps not invade Iraq when your attackers were from Saudia Arabia). In addition, if you want to be taken seriously, you'll be less suspect as a disingenuous twit if you make some effort to concern yourself with the more apparent and much better demonstrated related problem Z when you do craft your regulations to deal with problem X.

For those not good at plugging in variables here (and I suspect Mr. Howard, for all his 'scientific' talk, is one), X=SSC, Y=gay marriage, Z=other reproductive risks, such as Tay-Sachs, late pregnancy, etc....

Cheers,
 

John Howard:

Think of the burdens that would put you under, and your child under, due to the huge risks of birth defects.

"Objection, Your Honour. Assumes facts not in evidence."

Don't try to compare it to a black couple's risk of sickle cell anemia - if you haven't noticed, there are lots of black people, so it must not be so unhealthy for black people to have children together.

Don't pretend to even begin to understand science if you are of the conclusion that because "lots of black" people have children, there is no heightened risk of sickle cell anemia.

OTOH, because SSC has never even been done, the risks there (if any) are completely unknown. Yet you asume they are "huge".

Stated more simply in three words, John: You're an eedjit. Maybe we can go prosecute your parents for criminally negligent OSC ... or was your mother just a heavy drinker?

Cheers,
 

John Howard:

So your concerns about only allowing perfect pedigree marriages are misplaced.

Oh, heavens, no! I would never do such a thing. This is not my concern. I point out it is the logical sequelae to your fixation that SSC must be proved to pose no risk before we even allow anyone to apply for even that first 'baby step', a marriage license.

Are you trying to make "Bart" look like a geenyus?

Cheers,
 

John Howard:

The idea, Arne, is to not let any labs try to create people through genetic engineering. This would restrict a male-female couple that wanted to use modified gametes also, and this would restrict heterosexuals that wanted to join their gametes with another person of their same sex. It would mean that everyone is allowed to conceive with a person of the other sex, only.

But ... but ... but!?!?! You're proposing to achieve this by banning gay marriages!

Cheers,
 

John Howard:

And I've noticed that everyone who claims I'm crazy or that it isn't tied to marriage anyways, is always in favor of allowing same-sex conception.

Seeing as I've never said anything in favour of or against the hypothetical SSC, I'd say this is a hallucination. I'll leave it to qualified medical personnel to make a substantive diagnosis (but FWIW, "crazy" is not a valid medical condition).

Robert: You see, a "dialogue" is next to impossible when the two disputants cannot even agree on basic and provable facts.

Cheers,
 

the sweep of Mr. Howard's prohibitions are both overinclusive (in regulating those that have no desire for SSC),

Huh? Aren't all laws overinclusive in this way? I have no desire to murder anyone, but am prohibited from attempting murder anyway. Yes, most people have no desire to try SSC, which is why it shouldn't be controversial to ban it and shoudln't be hard to get the compromise passed.

at the same time underinclusive (in not regulating those that might seek the same while not married,

Oh, it would certainly prohibit unmarried people from attempting it too. Marriage is not mentioned in the proposed egg and sperm law, it really applies more to scientists than it does the contributors of the gametes, but they would all be party to the attempt to conceive.

not to mention those that have known risk factors for conceiving such as Tay-Sachs, etc.),

Those are not known risk factors, those are private risk factors, first of all, and no different from all of the unknown risk factors that people might have anyway.

and are not narrowly tailored to meet what Mr. Howard would like to pretend (far in front of any actual facts or evidence) is a significant gummint interest.

Protecting children from unnecessary experiments that have been proven to be very likely to give them new never before seen diseases is a government interest. I'd like to think that it was everyone's interest, but apparently some people think that there is a right to attempt it, in spite of the interests of the child.

Thus my objection to Mr. Howard's 'logic': He should want to ban my marriage, assuming that I would indeed attempt to have children (and ignoring the physical impossibility even were I to have that notion), simply because older women (and older men) are known to have a far higher risk of many birth defects.

Right, there is a natural risk to all pregnancies, as well as to every other activity. So why don't we ban all pregnancies? Why don't we ban all activities? I guess if we want to prohibit driving at 150 mph, we have to prohibit driving entirely? If we want to prohibit companies from selling dangerously shoddy merchandise, we have to prohibit companies from selling all merchandise?

We can't have an age limit on marriage, if an old couple gets pregnant and has a baby with down syndrome, they have a baby with down syndrome. Such is life, in all its beauty. We can't stop a married couple from having sex and possibly having kids, that is the right of marriage. They'd get old even if they weren't old when they got married.

Now, we might be able to prohibit IVF (or maybe not, due to medical privacy), but that wouldn't mean that any male-female couple, even an old couple, was prohibited from conceiving together, it would just make it less likely that they would. But if they do somehow conceive in spite of their age, no one would come and arrest them. I propose that if a baby is born that is claimed or discovered to be conceived from somethng other than an egg and a sperm, the people responsible for her creation be put in jail and fined.

Safety isn't the only reason society should outlaw same-sex conception, anyhow, We may feel that it would lead to a Gattaca type of gene-rich versus gene-poor society, where poor straight people were still having natural babies but same-sex couples and rich couples were using labs and genetic engineering and all sorts of controls to have healthier children. And we might not want conception to become an industry, requiring government regulation and oversight. Etc...
 

John Howard goes more floridly psychotic:

That is the scenario that would officially strip conception rights from marriages ....

Ummm, it was Mr. Howard that was propsing the two-tier "marriage" system, with civil unions being divorced (so to speak) from the reproductive license.

Marriage is what protects our conception rights, ...

Not on this blog. Here we are generally of the opinion that it is the law and the courts that protect our rights.

... it is the only thing that protects our conception rights, and so it cannot include couples that are prohibited from conceiving without changing it and putting all of our conception rights in jeopardy.

?!?!? Echoes of the lame "gay marriages will destroy my marriage, make me unfaithful, turn my wife into a devil-worshiping feminist lesbian, etc., etc." You'd think the foamers would learn a few new tricks. I think Mr. Howard thinks he did so with this "SSC" bug up his rectum, but I tire of it.

Cheers, Mr. Howard, and good riddance. Back to your pamphleteering, and let's hear no more of you.
 

That's fine, Arne, thanks for your time. What I was really hoping for was one of the bloggers here to respond. Seems to me Jack Balkin and others ought to have some opinions. Perhaps they could even dedicate a post to discussing how society ought to deal with the possibility of same-sex conception, and what conception rights have to do with marriage.

Jack, what do you think of my proposed compromise, which I feel is the best plan to give practical benefits and protections to same-sex couples that are married in massachusets but currently cannot feel very married, given the lack of federal recognition and lack of recognition in other states.
 

Arne: Robert: You see, a "dialogue" is next to impossible when the two disputants cannot even agree on basic and provable facts.

Actually, Arne, I'm bowing out on this thread. You've made some wonderful points along the way, but you served some of them a little too flame-broiled for my liking. Peace.

John, as Arne suggests, I suspect we do indeed disagree on some basic facts. Most importantly, however, I can't help thinking there are many much more urgent issues to pursue at this moment in history. Peace to you as well.
 

John Howard,

Arne is just a troll who prefers the standard liberal action of character attacks and insults rather than to ever deal with the substance of a differing thought in a civil manner. He peddles his schtick on several mostly liberal blogs.

In general, I just ignore his posts because they are always nothing more than the kind of left wing echo chamber personal attacks and gratuitous insults that might draw applause from the Kos kids or the Democratic Underground, but are in fact just a lot of heat with no light.

As to JB or any of the other enlightened official posters here I am not a regular enough reader of the comments here to know if they ever choose to participate in a discussion with commenters.

Says the "Dog"

P.S., Arne will not be able to control himself in posting a response to this that contains nothing but insults and character attacks. His proof of my points above should be forthcoming immediately.
 

John Howard:

That's fine, Arne, thanks for your time. What I was really hoping for was one of the bloggers here to respond. Seems to me Jack Balkin and others ought to have some opinions.

Not everyone has lots of free time to refute ridiculous arguments and to correct sheer eedjitcy (I'm on the road here over the weekend and the telly's not particularly enticing, what with no TDS up here in Canada).

I'm quite sure that if someone thinks you've made a substantive point of some appeal on some level, they'll address it appropriately.

Say, any chance you'd think about addressing any of my points? For instance, I am curious to know how Tay-Sachs screeening and counselling is a big waste of time, and how sickle cell anemia is not a "risk".

Cheers,
 

"The Dog" says:

Arne is just a troll who prefers the standard liberal action of character attacks and insults rather than to ever deal with the substance of a differing thought in a civil manner. He peddles his schtick on several mostly liberal blogs.

.... and "The Dog" proceeds to do ... well, exactly ... what then? LOL.

But "The Dog" knows (or should know) that what he says is untrue ... matter of fact, there's a long substantive discussion on law that he and I engaged in just a short while back.

Worse yet for "The Dog"'s attack here, I have made a number of substantive counterarguments to Mr. Howard's rather 'curious' reasoning. Perhaps "The Dog" could elucidate and explain whether he agrees with Mr. Howard that the risks of a non-existent procedure are in fact in such dire need of addressing that we should prevent the marriages of even the people that wouldn't be interested in using this particular procedure (if it in fact actually even existed), rather than -- if such caution and regulatory intrusion was in fact warranted -- simply banning the procedure itself. Or whether he agrees with me that this is a bonehead stoopid argument based on false premises (and possibly unstated motivations and animuses) and one which fails any "rational basis" evaluation, as I argued in a rather long post above I'd point out that "rational basis", while inexplicably lax IMNSHO as a test for permissibility of legislation alleged to violate equal protection, has been set at so low a bar as to comprise "as long as the legislature says so".

"The Dog" continues:

As to JB or any of the other enlightened official posters here I am not a regular enough reader of the comments here to know if they ever choose to participate in a discussion with commenters.

Perhaps a bit more reading is in order then. That should resolve that issue, and "The Dog" would have no reason to proffer a non-opinion.

P.S., Arne will not be able to control himself in posting a response to this that contains nothing but insults and character attacks. His proof of my points above should be forthcoming immediately.

I dunno. Let's give the case to the jury, eh? Maybe they can decide for themselves who is -- <*AHEM*> ........"Arne is just a troll"........ -- engaging in "insults and character attacks" around here.

Cheers,
 

Most importantly, however, I can't help thinking there are many much more urgent issues to pursue at this moment in history.

Robert, don't you think you should be telling that to the people spending time and money working on ways to allow same-sex couples to conceive together? They are soaking up valuable resources and talent that could be going to study the causes of real diseases that cause real suffering. Instead they are working on something offensively useless, work that implies that all of the couples that are raising children not biologically related to them don't love their children as much. There is no need for this technology. Plus, it is terribly dangerous, and do you really want to tell the children that are born from this with incurable genetic defects that you didn't think their issues were important enough to worry about?

Screening and counselling for Tay-Sachs is a good idea, Arne. But there is no requirement for it, nor any prohibition against people that are publically eligble to marry going ahead and marrying and procreating in spite of their risk of Tay-Sachs. I would oppose telling any married couple that they may not conceive together, and I would oppose telling any couple that is otherwise eligible to marry that they may not marry due to their genetic risks. You seem like you are ready to scrutinize couples based on their ethnicity and force them to undergo genetic risk assessment. That is exactly what I am afraid of, and why we need to preserve marriage's conception rights, and preserve everyone's right to marry. The only supportable basis to not allow a marriage are the ones we already have, that are based on public info and apply to everyone equally, such as their relatedness, age, and marital status.
 

Robert Link:

You've made some wonderful points along the way, but you served some of them a little too flame-broiled for my liking.

Perhaps a bit charred, but the meat was rotten from the start, so I suspect we've lost nothing despite remaining a bit hungry. I recognised that early on, from Mr. Howard's first missive. The voice of sad experience, I guess....

Cheers,
 

oh, and to that we now have to add sex, of course. It never mattered before, because there were no labs offering the service. but now there are labs working on it, and we can see that it is outrageously risky, based on the science that has been done so far. We can also see other problems that would come from allowing it, so we should prohibit people from conceiving with someone of their own sex, just as assuredly as we should prohibit conceiving with a child, or a sibling, or someone already married.
 

John Howard says:

Seems to me Jack Balkin and others ought to have some opinions. Perhaps they could even dedicate a post to discussing how society ought to deal with the possibility of same-sex conception, and what conception rights have to do with marriage.

Both Glenn Greenwald and Atrios regularly point out that it is their blog, and that those that think it Much More Important to address the complainer's cause du jour are provided with great tools for doing so in this day and age; they can put it on their own blog. IC that Mr. Howard has his own blog for that already, and if that's not enough soapbox for him, well.....

At the very least, if Mr. Howard hadn't tried to confuse and conflate the issues of whether gays deserve to be afforded marriage or its equivalent, with the separate issue of state regulation of reproduction, he might have found more willing participants for the discussion ... particularly over at his own blog which is dedicated pretty much to that nominal issue.

Cheers,
 

John Howard says, after falsely implying that SSC research s sucking scads of money (perhaps even more than the war in Iraq) from research on human disease:

Instead they are working on something offensively useless, work that implies that all of the couples that are raising children not biologically related to them don't love their children as much.

Strangely enough, I personally agree with John here in some ways, and think that we need far more adoption and far less expensive fertility/RT procedures. But that's just me, and I'm not about to tell other people that they can't pursue a child of their own flesh and blood (and I do have a certain sympathy for their desires even if I don't share such).

But his claim that "[this] work [] implies that all of the couples that are raising children not biologically related to them don't love their children as much" is simply false.

Cheers,
 

John Howard:

Screening and counselling for Tay-Sachs is a good idea, Arne. But there is no requirement for it, nor any prohibition against people that are publically eligble to marry going ahead and marrying and procreating in spite of their risk of Tay-Sachs....

But you insist on a blanket ban on the marriages of people some of who haven't even expressed a desire for a procedure that doesn't even exist. IC. Makes perfect sense. In some far off BizarroWorld.

... I would oppose telling any married couple that they may not conceive together, and I would oppose telling any couple that is otherwise eligible to marry that they may not marry due to their genetic risks. You seem like you are ready to scrutinize couples based on their ethnicity and force them to undergo genetic risk assessment....

Nonsense. I have said no such thing, and in fact I believe the opposite: people ought to be able to assess the risks and decided for themselves. What I have been saying multiple times, despite the fact it still hasn't sunk through your skull, is that your very own logic would compel banning marriages to Tay-Sachs carriers even if they understood the risks and didn't want to have a child.

... That is exactly what I am afraid of, and why we need to preserve marriage's conception rights, and preserve everyone's right to marry....

Ummm, not sure I follow you here (and not sure I want to). You're saying that in order to preserve the right of Tay-Sachs carriers to enter into marriage even if they understand the risks and are going to try to conceive anyway despite serious known risks, we must immediately ban all gay marriages because some of them might want to avail themselves of a procedure that might be available in the future to both them (and to others as well, which makes concentrating on them alone rather pointless) that might entail some health risks? Do I have it right? Is that your argument? If so, small wonder Balkin's staying as far away as possible and Robert is leaving post haste..... On the "plus" side, you've gotten "The Dog" to jump to your defence in his own inestimable way ... maybe you can talk "Bart" into joining the fray as well...

... The only supportable basis to not allow a marriage are the ones we already have, that are based on public info and apply to everyone equally, such as their relatedness, age, and marital status.

Ahhh, the crux of the 'argument'. Despite the fact that your "cure" does not 'fix' the problem that you claim exists potentially, perhaps one day in the future, and despite the fact that the "cure" doesn't 'fix' similar problems of known greater import, and despite the fact that other cures" might be more readily and closely applied to any actual problems that do arise, and despite the fact that your "cure" will adversely affect perfectly innocent people unnecessarily, let's go with the "cure" because that's what we've got right now. "When all you got is a hammer, everything starts looking like a nail." I'm afraid you're working with a rather light tool-box, Mr. Howard. Perhaps a nailfile, at best.

Cheers,
 

We don't have to allow labs to try to genetically engineer gametes and see if a healthy baby is born just because we allow people who might carry a gene for Tay-Sachs to marry and procreate. We allow EVERYONE to marry and procreate, we don't subject anyone to genetic risk assessments and then tell people or couples that do not pass that they are not allowed to conceive. But we do tell couples with certain public relationships (that apply equally to all people, and are not just based on safety) that they cannot marry and procreate. Does telling siblings that they may not marry also imply to you that we have to start screening couples for Tay-Sachs and not letting carriers marry? It doesn't to me, but you have a better knack for seeing these logical implications, it seems. I guess we have to let siblings marry because we let these Tay-Sachs carriers marry, then, huh? Genius.

See, the thing you keep missing is that some things are public, like age, sex, marital status, and their relationship, and other things are private, like if someone has a gene for Tay-Sachs. We feel that all people have a right to marry and procreate, it is a deeply held value noted in Skinner, but we don't feel that people have a right to marry children, married people, siblings, etc. To that list we should add people of the same sex. Adding that won't change anything regarding Tay-Sachs carriers.

It's funny you protest so much that banning non egg and sperm conception would have no bearing on marriage, yet also insist that we should keep same-sex conception legal. Why bother with the first claim if you are so sure that I'm crazy and alone in thinking we should ban non egg-sperm conception?

I think your hysterical arguments and JB's silence are both due to recognizing that there IS a good reason to not let people make up their own mind about whether or not to attempt same-sex conception, and that if we do, it WILL conflict with marriage rights for same-sex couples.

Now, I'm sorry if I haven't addressed every post of yours today. You poured it on, and it's hard to choose what to ignore as plain stupid and what to respond to. It's tempting to respond to the stupid ones and ignore the hard ones to answer, but I've tried to respond to points that I think other people might also be wondering about, and let your obvious clunkers speak for themselves. But if there is something you feel I still haven't answered, let me know.
 

John,

I know I said I was bowing out, but I'm stuck in a lab at work today, mostly watching progress bars crawl across the screen, and so here I am, with a couple of questions and an observation:

1) What is the purpose of marriage?

2) Who has rights to procreate, how does one obtain these rights?

3) "JB", as some folks insist on calling him (look at me, I'm a hipper-than-thou blogger!), is a professor of Constitutional law, author of a non-trivial amount of literature, and is likely to be fully occupied with his own interests. It seems a little less than gracious for us to whine when we fail to capture his attention; we're lucky he lets us play in his sandbox in the first place.

If you can only address one of these my vote would be #1. Peace.
 

Frankly, given the viciousness of certain posts, I wouldn't blame anyone for steering clear of the comments section. :)
 

There are many purposes of marriage, as well as reasons for marriage, etc, and many ways to understand marriage (as a legal status, as a psychological feeling, as a biological happening). But just to cooperate with you, I'll answer that it establishes consent and commitment so that people can do things that might result in offspring being conceived.

The second question- a marriage has - *is* - the right to procreate, exclusively and permanently, and everyone has the right to marry. To marry, you have to find someone who wants to marry you, and you both have to be eligible to marry each other. Single people have a right to procreate, but they have to get married to the person they want to procreate with first, as Skinner, Loving, Eisenstadt, Zablocki, et al, affirm. Of course, people can do things without having a right to do them, and sometimes the law can even sanction things for which there is no right, such as slavery.

Professor Balkin is an influential lawyer and blogger who ought to enjoy addressing an issue he perhaps hasn't considered. Thanks for letting me know that he isn't obligated to, but don't you think he ought to offer his opinion? What are you afraid of?
 

This comment has been removed by a blog administrator.
 

A final comment on the New Jersey Supreme Court decision, wherein the Democratic-appointed majority requires "accommodation" of same-sex couples in a manner equal to, or consistent with, opposite-sex couples versus the Republican-appointed minority that insists "due process" and "equal protection" are not "accommodations," but authentic rights that require both the rights and use of the word "marriage." Chief Justice Poritz's concurrence with dissent, beginning at p. 70 of the decision is well worth reading (for some reason I'm unable to copy/paste from Adobe).

The Chief Justice, part of the Republican-appointed minority, insists that due process and equal protection are not confined to benefits alone (however valuable), as the Democratic-appointed majority asserts, but that the word "marriage" has also connotations of social approbation, social status, personal dignity, embedded traditions, a distinctive identity, etc., and that, "what we name things matters, language matters" (p. 76). Thus, he insists, not only the "benefits," but the word "marriage," are intrinsic to full due process and equal protection. He then elaborates on why the use of any other term than "marriage" prejudices a difference, institutionalizes prejudice, which is contrary to the very equality that the Court insists it is affirming.

He then proceeds to a bold rebuke of majority's appeals to "history and traditions" (a common "conservative" standard) as a reason for anything, observing that the history and traditions of slavery and miscegenation would then be self-confirming. Likewise, appeals to "history and traditions" that hold marriage is exclusively heterosexual follows the same circular reasoning. And if marriage cannot be restricted to same-racial couples, without oppressing mixed-races, it follows it cannot be restricted to opposite-sex couples without oppressing homosexuals. If it restricts by virtue of "history and traditions," history and tradition become tools of oppression in a society of liberty and freedom.

That an entire Court holds that due process and equal protection entails inclusion, not exclusion, is remarkable -- and also hopeful. That it was the Democratic-appointed majority that regarded its decision as as "accommodation" to evolving history and traditions, while the Republican-appointed minority insists the decision is entirely a matter of the constitutional rights of due process and equal protection, necessarily including the label of "marriage" itself, illustrates the two different strategies that come to almost the same decision, but for different reasons. One oriented toward social progress in history and traditions, the other grounded in the human rights in a society of liberty and freedom. One side largely an "accommodation," the other entirely predicated on "rights in a free society."

Does anyone else "see" the larger implications of these two strategies? They scream out at me! That the two sides came to a similar decision this time does not assuage my anxieties of how they got there.
 

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