I'm sorry if I think that I as a father really do have a stake in this matter.
Let me be blunt. The fact that some have an immeasurably significant biological investment in a world that exists beyond their own lives creates an inevitable conflict of interest and values with those who don't. I state this as a simple fact. What consequence or significance this fact should have is a large question, which can't be answered in this posting.
But it is said that marriage is different because it is more than a private association; it is an institution licensed by the state. To which the answer is that any use of state monopoly power must avoid suspect grounds for discrimination. So the state must explain why it will favor some unions over others -- without resort to claims of public morals. The restraints on state power are the same as when the state uses its monopoly power to license drivers, or grant zoning permits.
The question here is not just whether the courts will impose their views on the people of the several states. It is whether they will allow a majority of the public to impose its will on a minority within its midst in the absence of any need for a collective decision. The claim for plural-sex marriage is no weaker than any other claim of individual rights on personal and religious matters.
But since many states bans homosexual acts, some ask, why not also ban plural sex marriages? Turn the question around, however: Why ban the former, especially by constitutional amendment, when agreed to by all parties? Incest is a different matter, with the high dangers from inbreeding. [A factually false statement -- PP]. And people and poodles can't tie the knot because one half in the relationship (some would say the better half) lacks the capacity to enter into a contract.
The case against state prohibition of plural marriages becomes clearer when we ask how much further we are prepared to take the principle of democratic domination. Where is the limiting principle on majority power? Suppose that the proponents of plural marriage rights get strong enough politically to require traditional churches to perform plural marriages, or to admit bigamists into their clergy. Or to demand that people accept bigamists as tenants in their homes, even if they regard their relationship as sinful. Now the shoe is on the other foot. I think that the paramount claims of individual liberty should not have to yield to democratic decisions intended to impose an alternative enlightened view of public morals."
Quoted by Virginia Postrel.
Gay Marriage. Marrying Mayor is charged with 19 criminal counts by top cop and district attorney in New York. Mayor may face 12 months in jail for violating NY laws.
Gay Marriage. Arnold Schwarzenegger -- "If the people change their minds and want to overrule [California's Defense of Marriage law], that's fine with me. But right now that's the law, and I think that every mayor and everyone should abide by the law .. " more ARNOLD SCHWARZENEGGER.
Gay Marriage, Plural Marriage. Andrew Sullivan pulls a "right to marry" quote from Hannah Arendt, the former lover of Martin Heidegger. Here's a simple question for Andrew -- what do we say to the loving Mormon plural couples in Utah, of which there are tens of thousands? This becomes an unavoidably meaningful question once the case for gay marriage is framed in terms of universal human rights and constitutional "equal protection", as it usually is by academic advocates, which is to say, tenured Democrats on the left.
The only reason Andrew and these academics so easily avoid the issue comes down simply to class and location -- they simply don't know anyone who is Mormon and from the sticks of Utah. These tens of thousands simply don't count to the academic and intellectual class, and therefore it can be pretended that they don't exist.
Gay Marriage. "On his website today, Andrew Sullivan proclaims his support for the concept that a same-sex marriage license issued in Massachusetts could be void in the other 49 states. That would be a welcome compromise, especially if the Massachusetts courts ever managed to persuade the voters of Massachusetts to approve their judicially imposed social experiment .. [but] I suspect that �letting the states decide� will over time gradually evolve into a demand to allow the most liberal states to impose their social values on the others through the mechanism of a million petty lawsuits on a thousand different issues. That is why it is necessary and proper to settle this issue on a national basis. And since the proponents of same-sex marriage have chosen 2004 as the year in which to bring matters to a head, they have no fair complaint if the opponents of same-sex marriage choose make their reply in that same year .. ". more DAVID FRUM
The Gang of Four vs. Democracy. In blunt language Charles Krauthammer take a hammer to the judicial Maoists who've chosen to give us an Anti-Democractic revolution from above, overturning the most ancient of all social insititution without any participation of the people. My thought: In America this is about as close as it gets to witnessing a cell of political thugs burning down the people's house.
Well Said:
The model [marriage] amendment has two sentences: The first restricts marriage to the union between a man and a woman; the second enjoins the courts from imposing a solution ..There is debate about whether the amendment's language would bar states from endorsing civil unions, which Mr. Bush says they should be free to do. We think this entire issue should be decided in the states, by the people through their elected legislators. And if the voters want to alter the definition of marriage as a new social consensus develops, that should be their democratic right.
But a political debate over gay marriage is precisely what its supporters do not want. They are the ones who want to impose a national solution via the courts. What the President endorses is not a federal solution but a federalist solution. In contrast to an executive order or federal law or regulation, a constitutional amendment requires not only the endorsement of two thirds of the House and Senate but the assent of the legislatures of three-quarters of the states. Amendments are historically difficult to pass, and the odds favor skepticism about its chances. But merely by being offered it will serve as a brushback pitch to the courts that this issue should be settled by democratic means.
Our social and cultural mores are changing rapidly, and accommodations for gay partners are already common in business and other American institutions. When it comes to the legitimate rights that gay Americans say their exclusion from marriage denies them--hospital visitation, inheritance, etc.--we can think of few that most Americans would not be willing to redress.
The question is whether this must also take the form of imposing an unprecedented redefinition of marriage on the majority of Americans who oppose it. Even John Kerry and John Edwards claim they don't want gay marriage ..
We wish we could count on the courts, especially the Supreme Court, to understand the need for deference here. But anyone who has read the logic of Lawrence, or before that of Romer v. Evans, has to conclude that the current Supreme Court would all too readily impose its own views on everyone else. In the process, it would be happy to overturn not just the Defense of Marriage Act signed by Mr. Clinton, but also 50 state laws, not to mention hundreds of years of moral and legal tradition.
As we said after Lawrence, that would ignite a real culture war, roiling our society for years to come. In a better world, we could trust our judges and executives to enforce the law and trust in the process of building democratic consensus. But on the evidence of recent months, not anymore. We have reached a point where a constitutional debate may be the only thing that will guarantee Americans the right to decide such a fundamental issue as marriage in a democratic fashion .. ".
Gay Marriage. "San Francisco's Winter of Love sends two messages to America. The good message is that many same-sex couples want to spend the rest of their lives together. The bad message is that if pro-gay pols have power, they will use it to break the law and the establishment -- the courts, the attorney general - - will aid and abet them .. ". more Debra Saunders.
Gay Marriage. Hugh Hewitt gets it. Quotable:
When courts dictate law, as has happened in Massachusetts, or when low-ranking, publicity-grabbing officials make up the law, as is happening in San Francisco and may soon happen elsewhere, then freedom is diminished because the rule of a few is substituted for the rule of elected legislatures. There is no covering up this most basic of issues: Who runs America?
UPDATE: Professor Bainbridge gets it also and here as well. Anyone paying attention (and Prof B was) would have noted that the President had already tipped his hand on this one in the state of the union address:
Activist judges, however, have begun redefining marriage by court order, without regard for the will of the people and their elected representatives. On an issue of such great consequence, the people's voice must be heard. If judges insist on forcing their arbitrary will upon the people, the only alternative left to the people would be the constitutional process.
Gay Marriage. Donald Sensing has the must read posting of the day on why it has come to this. Bottom line: it's come to this because lawless judges and officials have decided to use extra-legal means to bypass the democratic system.
Gay Marriage. "In 2000, the people of the state of California voted by a margin of 61 percent to 39 percent to pass Proposition 22, which defined marriage as the union of a man and a woman. Having openly defied the overwhelming opinion of the voters of California, the city of San Francisco will now sue to overturn Proposition 22 on the grounds of the equal-protection and due-process provisions of the California State constitution. Does anyone believe that the framers of California's constitution intended these provisions to have this effect? Could there possibly be a more blatant effort to override democratically expressed public opinion? If the public stands for this, there will never be limits to judicial activism again .. ". more STANLEY KURTZ.
And this: "Newsom is using extra-legal means to bring a major national debate to resolution on his own terms. By creating "married" couples, Newsom is trying to put the cultural, political, and legal momentum inherent in "possession" behind his side of the argument. If Newsom is allowed to determine a major policy debate by resort to extra-legal means, the damage to social trust and civil comity in our divided nation will be immense .. " Read the rest.
Gay Marriage. Right Coaster Tom Smith speaks with eloquence on the topic. Damned if I know either whether this is the route to go or not -- but damned if I'm going to let unelected (and deeply illiberal) judges take the decision away from you and I, especially on the corrupt grounds of a bankrupt theory of constitutional jurisprudence. The accelerating judicial nullification of liberal constitutionalism and democratic governance is not something we should take bent over with our mouths shut and our hands tied. If you look close at what the President is actually doing this is really the substance of his argument. Simply put, what the Presidentis saying is that this society and this legal system will be hijacked by judicial outlaws no longer. And bully for him.
Gay Marriage. Lockyer to Schwarzenegger -- go pound sand. Note well how this SF Chronicle news story takes on the decided tones of an opinion piece. In fact, the law is pretty clear that Lockyer is directly responsible for acting to ensure that the laws of California are enforced. And it equally clear that Lockyer is joining hands with a judiciary which would prefer to sit on its hands as long as possible -- in effect participating with the Mayor in a rolling act of democracy nullification. Next move Schwarzenegger.
UPDATE: Interociter has a suggestion for Schwarzenegger: "Hire an outside law firm to make the state's case, intervene in the current case as the chief Consitutional officer of the state, stating that the Attorney General is derelict and refusing to uphold California law for political reasons. Then he should file ethics charges with the State Bar against the Attorney General for putting his personal political ambition before his duties to the State. Think of it as a PATCO moment."
Gay Marriage. Pop quiz for the "equal protection" folks -- we're flying at a 100 miles an hour down the slippery slope, what is the principled argument for denying marriage to this young couple if "equal opportunity" and "state interest" are the criteria? (And whose perceptions of "the interests of the state" count anyway -- just those with a seat on the bench and/or tenure in the law school, or does the democratic majority have any say in the matter? OK, you're right, I do already know the answer to that one). And if marriage is not to be denied to these two -- who shall be denied marriage? I can see the case for allowing marriage because the parties involved love each other -- but the same can be true in all sort of other cases even farther outside of the limits of the law as it currently exists.
What I am looking for is this. I have yet to hear a principled argument for denying "equal protection" to any set of persons wishing to married any other set of persons -- but if the flying slide down the slope is to stop, there must be some principled stopping point somewhere. Well, what is it? And how do these grounds differ from the ones advocated of male-female marriage already provide -- because they do provide these, where as, as far as I've been able to determine, those who advocate flying down the slide on "equal protection" grounds do not. If they do, lets hear them. I have an email address, up there at the top on the right hand side.
I'd actually like some real answers on this. No doubt folks have given it some thought and have come up with answers to the question. I simply haven't seen these anywhere, and haven't been able to come up with the answers myself. Sometimes thinking things through is more than merely a rhetorical excercise. Of course, like everyone, I enjoy the rhetoric, but I enjoy -- and value -- the hard work of thinking things through much more. So. Any thoughts, reflections, arguments? Comments are open.
UPDATE: Julian Sanchez jumps on the equal protection bandwagon and gives three cheers for plural marriage:
I tend to watch Crossfire for laughs, but right now I'm livid. Tucker Carlson just asked Human Rights Campaign president Cheryl Jacques why, for all the reasons she advances to support gay marriage, polyamorous groupings of three or more men or women shouldn't be recognized. Her brilliant, principled answer?"Because I don't approve of that."
Oh. Because you don't approve of that. So then why, again, is a majority's nonsensical disapproval of your lifestyle supposed to be trumped by a principle of fairness? Why should anyone now take your fine language about equality and human rights seriously?
Look, I understand that for political reasons it might be prudent, right now, anyway, for defenders of gay marriage not to publicly acknowledge what a real principle of fairness here entails. I could've even, reluctantly, swallowed a dodge like: "Well, that's not at issue right now, and it'd be have to be considered independently." But this kind of BS answer takes the wind out of your sails pretty badly. If you're going to demand the equal treatment that is your right, then you ought to have both the empathy and the cojones not to buckle when the rights of even less popular groups are at stake.