Gay Marriage And New Jersey

The NJ Supremes have re-opened the gay marriage debate; here is Times coverage, and here is a .pdf of the 90 page opinion (with a thank-you to Prof. Althouse).

Eugene Volokh is especially cogent with his slippery slope observation:

I did want to note one thing -- this decision, whether you like it or not, seems to be an illustration that the slippery slope is a real phenomenon. Even when there are conceptually quite clear distinctions that could be used to distinguish the first step A from the final step B, A may nonetheless help bring B about. Consider how the decision relies on the enactment of past gay rights laws. The backers of such laws often argue that these laws do not create a slippery slope towards same-sex marriage or civil unions. Thus, for instance, an editorial in the Boston Globe, Oct. 15, 1989, at A30, said "[A proposed antidiscrimination law barring sexual orientation discrimination in credit, employment, insurance, public accommodation and housing] does not legalize 'gay marriage' or confer any right on homosexual, lesbian or unmarried heterosexual couples to 'domestic benefits.' Nor does passage of the bill put Massachusetts on a 'slippery slope' toward such rights."

...

Yet the New Jersey Supreme Court's equal protection argument begins by citing such non-same-sex-marriage, non-civil-union gay rights laws (citations omitted):

In addressing plaintiffs’ claimed interest in equality of treatment, we begin with a retrospective look at the evolving expansion of rights to gays and lesbians in this State. Today, in New Jersey, it is just as unlawful to discriminate against individuals on the basis of sexual orientation as it is to discriminate against them on the basis of race, national origin, age, or sex. Over the last three decades, through judicial decisions and comprehensive legislative enactments, this State, step by step, has protected gay and lesbian individuals from discrimination on account of their sexual orientation.

Just off hand, I would note that slippery slope arguments are frequently offered by both sides in the gun control and abortion debates.

Meanwhile, back on gay marriage, Scott Lemieux of TAPPED is the opposite of cogent:

THE MAJORITARIAN DIFFICULTY.   Glenn Greenwald makes a very important point about yesterday's judicial decision in New Jersey:

The decision today is entirely consistent with the democratic will of New Jersey residents. The New Jersey legislature already enacted a domestic partnership bill two years ago which recognizes, and grants a whole array of marital rights to, same-sex couples. But the way the laws were written, some rights were still assigned only to "married" couples. The court decision today simply requires that those same-sex partnerships have all of the rights which are given to married couples. But New Jersey voters, through their representatives, already approved of recognition of same-sex relationships two years ago.

Huh?  Let me try for a Slightly Shorter Greenwald: Two years ago the NJ State Legislature approved gay domestic partnerships with many but not all of the rights of hetero marriage, thereby demonstrating majority support for recognition of gay domestic partnerships with all of the rights of hetero marriage.  Sure, that makes sense.

It may well be the case that a majority of the good people of the great state of New Jersey support civil unions with rights equal to hetero marriage, but that recent legislation is not supporting evidence.

Mr. Lemieux shoots and misses again:

Whether the decision is right or wrong, it cannot be wrong because it's inconsistent with majority opinion in the state. 

Groan.  My personal opinion is that gay marriage or civil unions is fine if enacted by the state legislature but wrong if crammed down by judicial fiat.  How would pollsters, or Mr. Lemieux, score that?  Surely I am not alone in believing that process counts.

Mr. Lemieux links to this problematic poll from which I will accept this conclusion:

Regardless of the question order, about 65 percent of respondents supported civil unions, and 30 percent opposed them.

Comments

[boris]

A very excellent October surprise to motivate reluctant Republican base voters. I wonder how Rove pulled it off.

[clarice]

Instapundit notes that because the Ct kicked the can down the road a bit it may have less impact..and if you go to memeorandum and see that headlines report the ruling in opposite ways (they mandated gay marriage vs. they refused to okay them) he may be right.

[boris]

Wishful thinking on the instapundit's part. The details are not that complex. Mandate legal status equal to marriage and no matter what the law calls it, proponents can call it "marriage" and opponents can call it something else. Sort of like Amendment 2 explicitly (page1) claiming to ban cloning while discreetly legalizing (page5) the medical procedure for cloning into the constitution.

[Gary Maxwell]

I wasn't fooled but maybe I pay more attention. Seems to me like the Judges said, "we just decided but we will give you guys 6 months to come up with a name for it." Why? Maybe they thought they were being sly.

[Bob]

http://www.breitbart.com/news/2006/10/26/D8L0CL2O1.html>NJ's Gay Ex-Governor Says He Would Marry

Hey maybe the Dems will drop Menendez for McGreevy... now that his love life is in order!

<blockquote> "I applaud the court's courage," McGreevey told the AP. "I regret not having had the fortitude to embrace this right during my tenure as governor."

Wow he really sounds like a new man... or whatever!

[Jane]

Serious question:

What do opponants of gay rights want to see happen? Do you want same sex couples to have to contract for all the same rights as het couples, or do you want to place limits on who people can sleep with or is there some other solution?

It seems unlikely anyone is going to un-gay, gay people.

One interesting thing that is often missed in any of these gay rights discussions. Assuming that 10% of people are gay, and assuming the trend in the gay community is toward marrying, any legalization of gay marriage will deplete the treasury a bit as most marriage benefits are in the form of tax relief. One could certainly argue that an increase in marrieds would hurt tax collection. Of course since hetero marriages are on the decline that is probably not a compelling argument.

But I'm serious about wanting to know the objection. Is it simply because of the way it has been arrived at? If the legislature voted to adopt gay marriage in a particular state (in a fair and unfettered way) would you lose your objection? Or is it because you don't know any gay people and don't want to, or because you find them morally reprehensible and want them to stay in the closet, or what?

[Sue]

What do opponants of gay rights want to see happen?

What are 'gay rights'? And who is opposing 'gay rights'?

[Gary Maxwell]

assuming the trend in the gay community is toward marrying,

Kinda of big assumption. Are you an economist by any chance?

My objection is simple. The Dutch have already performed the experiment for us and the impact on society of not holding marriage in high regard is quite evident. I would like my children to enjoy an America as vibrant as possible. That means to me staying as far away from the European model on most things as is possible.

Not sure why that domestic partners should be granted health benefits or tax benefits etc by right. How about live in opposite sex or just two same sex people who have no relationship but they have separate rooms in an apartment but one has a better health plan than the other? I have no objection to a business choosing to offer such benefits as a cost of doing business ( as opposed to being forced into the cost structure by edict). No objection to a government deciding to extend a tax break to someone. A court doing it seems wrong to me.

[Kman]

"Two years ago the NJ State Legislature approved gay domestic partnerships with many but not all of the rights of hetero marriage, thereby demonstrating majority support for recognition of gay domestic partnerships with all of the rights of hetero marriage. Sure, that makes sense."

It makes sense when you ALSO consider that NJ voters, through the democratic process, adopted a state constitution which provides equal protection guarantees.

When people decry this decision as "judicial fiat" which thwarts the "will of the people", they constantly ignore that the Equal Protection clause of the NJ Constitution IS the "will of the people". That's how it got there in the first place.

[Sue]

A court doing it seems wrong to me.

Do a man on the street in NJ. Ask them to name the 7 SC justices. I bet you will be hard pressed to find 1 person who can name even 1 justice, unless it is a practicing attorney in the NJSC, a clerk, family member, or fellow justice. Yet 7, unelected, unaccountable, lawyers turned justices, have demanded the legislatures write the law the way they decide it should be written. We don't need legislatures. We don't need voters. We need SC justices. Obviously.

[Sue]

When people decry this decision as "judicial fiat" which thwarts the "will of the people", they constantly ignore that the Equal Protection clause of the NJ Constitution IS the "will of the people". That's how it got there in the first place.

Oh please. Even the justices understand it is a judicial fiat. That is why they gave them 6 months to write a law that reflects their ruling.

[SunnyDay]

Anyone want the pdf in richtext format?

[Kman]

"Yet 7, unelected, unaccountable, lawyers turned justices, have demanded the legislatures write the law the way they decide it should be written."

This is sophistry at best. The NJ Constitution -- not the judges themselves -- require equal protection be given to everyone under the laws.

If you are going to recognize domestic partnerships (as NJ did), then under the Equal Protection clause of the NJ Constitution (which was ratified by the duly-elected representatives of the majority), you can't give those "unions" SOME of the legal benefits and protections of traditional hterosexual marriage.

[K Ashford]

"Even the justices understand it is a judicial fiat. That is why they gave them 6 months to write a law that reflects their ruling."

No, that's not why. In fact, that's usually the result when a court finds a law to be unconstitution -- kick it back to the legislature to rewrite a law that comports to the Constitution. That happens with "conservative-leaning" courts AND "liberal-leaning" courts.

[Gary Maxwell]

There is an equal protection clause in the US Constitution. So why did Democrats ( and a few Republicans ) argue we did not need a Constitutional amendment to protect marriage as a institution reserved for a man and a woman. Were they lying then or are you seeing something that was never the intention of the framers of the Constitution?

[Jane]

The Dutch have already performed the experiment for us and the impact on society of not holding marriage in high regard is quite evident.

Gary,

So is your objection that you don't think gays take marriage seriously?

[Forbes]

Jane: Here's a partial answer.

What "rights" are gays denied?

Enumerate them, and ask the public to enact legislation sufficient to grant such "rights".

Will you accept the democratic outcome, or will you resort to legislation from the bench, as in the case of MA, and now NJ?

Here's a hint: the "rights" most mentioned are actually "benefits" specified in tax laws and regulations limiting eligibility to married couples.

If so-called gay rights activists were honest, they wouldn't cloak a demand for government benefits under the cover of redefining the meaning of marriage, IMO.

Cheers.

[Jane]

Kman,

That was my read of the NJ decision as well.

[Sue]

This is sophistry at best. The NJ Constitution -- not the judges themselves -- require equal protection be given to everyone under the laws.

The same way they 'found' abortion rights in the constitution?

[Jane]

Forbes,

What "rights" are gays denied?

It seems to me they are denied benefits not rights. The whole issue gets cloaked in a rights discussion and I think your objection to that is valid.

Will you accept the democratic outcome, or will you resort to legislation from the bench, as in the case of MA, and now NJ?

WEll as you know I am pro-gay marriage, but when the MA decision came out, I thought it was wrongly decided. I think it is important to pass legislation. I don't agree with you on the NJ case, at least so far, (I have not finished reading the whole thing) because I think the language in the NJ Constitution is clear, and any objection you have should be with the framers.)

If so-called gay rights activists were honest, they wouldn't cloak a demand for government benefits under the cover of redefining the meaning of marriage, IMO.

I'm not at all convinced that marriage has been defined as succinctly as you choose to say it has. If it were there would not be all these referendums to ratify the consitution in many states.

What I'm trying to understand is if people are really against the integration of gays in society or something else. Are you saying that if the legislators in your state voted to allow gays to marry, the issue would go away for you?

[Jane]

The same way they 'found' abortion rights in the constitution?

Sue,

Could you point me to the language in the decision that leads you to this comment, because I don't see it.

[Sue]

I'm not at all convinced that marriage has been defined as succinctly as you choose to say it has.

Well don't look the definition up in the dictionary then.

What I'm trying to understand is if people are really against the integration of gays in society or something else.

Something else. My godson is gay and I love him dearly.

Are you saying that if the legislators in your state voted to allow gays to marry, the issue would go away for you?

No. Marriage is a religious ceremony. It is not recognized by the government. All married people have a 'civil union', i.e., a marriage license issued by the state where they reside. The government does not recognize a strictly religious ceremonies without the license. Grant civil unions for all, including two elderly sisters who live together and let them enjoy the same tax benefits, etc.

But are you also willing to allow polygamy? They also have 'rights'.

[SunnyDay]

gaypatriot has some interesting thoughts on this.

[Barney Frank]

What do opponants of gay rights want to see happen?

By gay rights presumably you mean equal rights and/or priveledges regarding interpersonal relationships as married heterosexuals, correct?
Certainly tax regulations and such hardly come under the rubric of "rights" but lets leave that aside for now.

The short answer is that I would like to see gay people left alone to do as they please in the privacy of their own homes. I would also like to see a few thousand years of traditional moral standards, traditional marriage and the nuclear family protected to the extent possible in our public policy.

The idea that moral standards thousands of years old are merely vestiges of primitive prejudices and can be cast off with impunity is very tempting and usually quite destructive and, most importantly, nearly impossible to put back in the bottle. The slippery slope does indeed exist as we now see calls for marriage to be extended to polyamourus relationships or simply to be abolished all together. While the concern with the slippery slope always seems to be how far down it we will slide the real propblm is that it is nearly impossible to climb back up it when things turn out somewhat less wonderful than what was promised.
Societies that become self indulgent, never suffer a good end. The "gay rights" agenda is merely one front in the broad war between the traditional virtues which strengthen societies and those which send them into a spiral of decadence and lassitude.

[ed]

Hmmmm.

1. I'm a fiscal conservative.

2. I oppose gay marriage.

3. I live in New Jersey.

4. There isn't that much difference between Republicans and Democrats in New Jersey.

5. It's a mistake to think you can discern how New Jersey think based on any single thing. New Jersey isn't a single state. Officially it is, but in reality it's divided between Philadelphia and New York.

For instance there really isn't a New Jersey media market. There's a Philadelphia or a New York media, but nothing that is solely New Jersey. That's one reason why corruption and party politics has lasted so long here. Because the media tends to concentrate on issues that affect the big media markets, not necessarily those that affect New Jersey alone.

6. The New Jersey legislature tends to do whatever the hell it wants. This is an aspect of #5, which means it's tough to get a state-wide concensus view on anything, particularly corruption, because the same story has to operate within multiple major media markets.

*shrug* what the hell do you want? It's frigging New Jersey for chrissakes!

:)

[boris]

Law does not create marriage, it channels, guides, structures and constrains it. In that sense marriage is not a "right" created by law or constitution. It would be far more accurate to claim that the concept of civil contracts are in some ways similar to the "marriage contract" than to make the reverse claim that marriage is a type of civil contract. Marriage existed long before any concept of legal contracts. Marriage may in fact be one of the ancient reasons law was invented.

IOW it would probably be more accurate to claim that law was inspired and created by marriage that the other way around.

I don't object to gay marriage, I just don't think it exists. Marriage is a specific thing and people know what it is because it's part of human nature, like language. Calling Fortran a "computer language" does not elevate it to the same status as English or Russian. This kind of symbolic nonsense is like judges deciding that cattle are actually plants instead of animals and expecting vegetarians to start eating beef.

[Sue]

I should have been a little more clear. You can have a religious ceremony and marry your partner, if you can find a church that allows same-sex marriages. The idea that same sex couples can't marry is an illusion. What they don't have is the civil union.

In NJ, will Catholic priests be forced to 'marry' same-sex couples? Of course not.

[coolpapa]

Sue-

"In NJ, will Catholic priests be forced to 'marry' same-sex couples? Of course not."

Give it time.

[Jane]

Well don't look the definition up in the dictionary then.

Sue

I think the place to look it up is in the NJ Constitution. And as I mentioned before, a lot of states currently seeking ratification think maybe your dictionary is not the proper source either.

Something else.

So what is that something else?

No. Marriage is a religious ceremony. It is not recognized by the government. All married people have a 'civil union', i.e., a marriage license issued by the state where they reside. The government does not recognize a strictly religious ceremonies without the license. Grant civil unions for all, including two elderly sisters who live together and let them enjoy the same tax benefits, etc.

Oh sorry, I thought you lived in the US. My mistake.

[Bob]

http://gaycitynews.com/site/news.cfm?newsid=17379741&BRD=2729&PAG=461&dept_id=568864&rfi=6>Absorbing Gay Pain & Praise, Clinton Says She's Evolved

It was at this point that the senator stated her support for "full equality of benefits, nothing left out," before saying that civil unions offered the more certain route to that goal.

"If you go the next step and say, 'But I want what is called marriage,' you're going to have a problem."

Possibly the only thing I'll ever agree with her on!

[Sue]

Jane,

I was being snarky. The NJ constitution doesn't work very well as a resource either, since the justices couldn't find it in there either.

[Jane]

The short answer is that I would like to see gay people left alone to do as they please in the privacy of their own homes. I would also like to see a few thousand years of traditional moral standards, traditional marriage and the nuclear family protected to the extent possible in our public policy.

Barney,

What about gay people with high moral standards and a committment to a nuclear family, like yours?

Societies that become self indulgent, never suffer a good end. The "gay rights" agenda is merely one front in the broad war between the traditional virtues which strengthen societies and those which send them into a spiral of decadence and lassitude.

Boy you know very different gay people than I do. Which isn't to say there isn't a long history of decadence and lassiture (altho I'm not sure I know what "lassiture" means) in the gay community - but hell, wasn't that same trend in the male community one of the reasons this country decided to start rewarding people for getting married?

Is it safe to assume you think the same remedy would not work in the gay community?

[Sue]

Oh sorry, I thought you lived in the US. My mistake.

I missed this. You can be snarky too. ::grin::

[Sue]

What about gay people with high moral standards and a committment to a nuclear family, like yours?

Civil unions. Not marriage. Why the need to have it called marriage? If what they want is the benefits that heterosexual couples are afforded, why would they care what it is called? Unless they want the blessing of a society by having their union recognized as a marriage. If that is the case, they need to change the views of society the same way women changed the views of society to break through a male dominated society. Not with judicial fiat, but with a campaign to change the minds of enough voters that it was enacted through the process called amending the constitution.

[BC]

In response to the question of whether opponents of gay marriage are against the integration of gays into society: not to be flippant, Jane, but do you really, honestly believe that the integration of gays into society is going to be achieved by favorable court rulings? If so, I have a bridge to sell you.

I'm happy to tolerate individuals' private sexual procilivities. I'm not happy to lend the state's official sanction to deviant (in the non-normative sense of the term, not the perjorative sense of the term) sexual relationships that bear no resemblance to traditional family units in the hope that this will encourage the benighted to accept or celebrate lavender fabulousness.

[Jane]

In response to the question of whether opponents of gay marriage are against the integration of gays into society: not to be flippant, Jane, but do you really, honestly believe that the integration of gays into society is going to be achieved by favorable court rulings?

BC,

Before I waste another minute talking with you, could you please show where ever in the history of my participation here I have ever said this. Thanks.

[Jane]

Civil unions. Not marriage. Why the need to have it called marriage?

Sue,

So you advocate separate but equal? Is that to preserve tradition, or to emphasize morality, or for what purpose? That idea doesn't offend me but I'm not sure I get the point of it, unless it is to make sure we keep gays separate in some way so as not to freak out the hets.

deviant (in the non-normative sense of the term, not the perjorative sense of the term)

Since fewer than 50% of all adults are currently married, it seems that institution is headed toward the non-normative sense of the term too.

[Kman]

"If that is the case, they need to change the views of society the same way women changed the views of society to break through a male dominated society. Not with judicial fiat, but with a campaign to change the minds of enough voters that it was enacted through the process called amending the constitution."

ERA passed? I missed that little bit of news.

But you raise an interesting analogy. The reason why conservatives fought against ERA was because (according to them) it wasn't necessary. "The Constitution already provides equal protection to women" they said. "You don't need a 'special amendment' for women."

Funny. Now when "equal protection' is used to give equal benefits and protections to gays, conservatives cry "They need to go get an amendment for that."

I don't know. Perhaps some of you have not thought about what "equal protection" means, or to whom it applies. But (to state the obvious) it means "equal" and it applies to everyone -- yes, even gays.

[BC]

Jane, in your comment at 12:01pm, you wrote:

What I'm trying to understand is if people are really against the integration of gays in society or something else. Are you saying that if the legislators in your state voted to allow gays to marry, the issue would go away for you?

I thought it was fair to infer from that you feel state sanctioned same-sex marriage will encourage the integration of gays into society. I'm asking you if you seriously believe that this is so regardless of whether we arrive at said state sanction via judicial fiat or political consensus.

If I have not made a fair inference, I apologize. Feel free to correct me where I've misunderstood your views.

[BC]

Ack. Stupid HTML. TM, help?

[Sue]

Kman,

I was referring to the 19th amendment.

Gays already have the full benefit of the 14th amendment.

[BC]

Since fewer than 50% of all adults are currently married, it seems that institution is headed toward the non-normative sense of the term too.

This would be a fine point if I had been applying the term to marriage rather than sexual relationships, Jane. Please read for comprehension.

[K Ashford]

BC:

"I'm happy to tolerate individuals' private sexual procilivities. I'm not happy to lend the state's official sanction to deviant (in the non-normative sense of the term, not the perjorative sense of the term) sexual relationships that bear no resemblance to traditional family units in the hope that this will encourage the benighted to accept or celebrate lavender fabulousness."

But NJ already DID sanction "deviant" (in the non-normative sense of the term, not the perjorative sense of the term) relationships. As the court noted, NJ passed a "Domestic Partnership Act", which gave SOME benefits to non-traditional marriages.

And under your definition of "deviant" (a commendable one), there are plenty of marriages (besides gay marriages) which don't fit the "traditional family" mold. Interracial marriages. Marriages between octogenarians. Marriages between a 70 year old and a 16 year old (the latter having parents approval).

In all those situations, the state doesn't take stock to see if the people are in love, or if they can have kids, or if they fit into some nebulous definition of "traditional". Nor, I hope, would we want the state to get into the business of doing that -- talk about social engineering.

[Sue]

So you advocate separate but equal?

Why not? Men and women are separate but equal. A man doesn't have abortions, can't prevent a woman from aborting his child, but they are equal, correct? There is separate but equal in law all the time.

[Kman]

Sue writes:

"I was referring to the 19th amendment.

Gays already have the full benefit of the 14th amendment."

The Fourteenth Amendment (of the U.S. Constitution) contains the Equal Protection Clause, which is the federal counterpart to the equal protection clause in N.J. -- the heart of this case.

Gays do NOT have equal protection of the laws if they are denied the benefits of marriage (or whatever you want to call it). That was the whole thrust of the opinion in this case.

[Sue]

Gays do NOT have equal protection of the laws if they are denied the benefits of marriage (or whatever you want to call it). That was the whole thrust of the opinion in this case.

Really? It was? Holy Moley! I did not understand that. In the same amendment they found the right to abort a child? Lordy, mercy...

/sarcasm off/

[BC]

But NJ already DID sanction "deviant" (in the non-normative sense of the term, not the perjorative sense of the term) relationships. As the court noted, NJ passed a "Domestic Partnership Act", which gave SOME benefits to non-traditional marriages.

I'm comfortable with, though not completely thrilled about, this to the extent that it is achieved through political consensus (and thus is the result of changing social mores). Yet some seem to think it's okay to effect farther-reaching social change with the bang of a judge's gavel.

And under your definition of "deviant" (a commendable one), there are plenty of marriages (besides gay marriages) which don't fit the "traditional family" mold. Interracial marriages. Marriages between octogenarians. Marriages between a 70 year old and a 16 year old (the latter having parents approval).

Do interracial marriages constitute deviant sexual relationships? Do marriages between octogenarians? Do marriages between an elderly man and a young woman, assuming that all concerned have consented? I think you can make an argument that the last example qualifies, but it's fairly thin gruel. Beyond that, I'll just note that it's generally helpful if you respond to what I wrote, rather than attacking straw men.

[Barney Frank]

Jane,

I believe you are conflating personal integrity with the broad scope of public virtue and morals.
Of course many gays are personally very decent people. But that says nothing about the effect on society as a whole of the normalization of homosexuality. Many adulterers are otherwise very upright citizens but that does not mean adultery should be normalized. A society has a right to defend itself from those behaviors which as a whole tend to disintegrate that society. And gay marriage is one of those behaviors. Alone, each brick taken out of the wall of traditional virtue is unimportant, until one stands back eventually and realizes there isn't a wall any longer. You might call it the myopia of the present, which in every age thinks it is uniquely suited to succeed at what every other civilization has failed at in the past.
Obviously it is a balancing act, but I think it is at least debatable that the forces which would dissolve our societal bonds have the upper hand when we look at the social chaos we now consider not only acceptable but normal. The most extreme pornography, drug use, language, violence and selfishness are now not just extant, as they always are, they are openly challenging for equal or superior status with their opposites, if not superceding them in many parts of the culture.

Show me one society, especially a democracy, that has survived in such a state for very long.
They are either weakened to the point of succumbing to ascendant outside forces (Islam)or they implode and internal authoritarianism takes over.

[Florence Schmieg]

Marriage as an institution exists for children. All the arguments I hear here on either side do not mention that. Decades of early childhood research has documented the importance of a father and a mother in the home when raising children. Big Brother and Big Sister organizations were begun to replace that absence in children whose homes could not provide it. So, the gay marriage issue truly confuses me. Do we discard all of the academic studies as irrelevant now? Do we say the needs of children are less than the needs of gays? The biological realities are FACTS, not prejudices. How do we deal with them?

[Kashford]

B.C.:

"Do interracial marriages constitute deviant sexual relationships? Do marriages between octogenarians? Do marriages between an elderly man and a young woman, assuming that all concerned have consented?"

Well, if you want a clearer example, what about married (heterosexual) couples who engage in, say, S&M? Only S&M?

Certainly, that is a "non-normative" (aka "deviant") sexual relationship. Certainly, that practice "bears no resemblance to traditional family units". Yet the state of NJ sanctions those relationships.

You say that "happy to tolerate individuals' private sexual procilivities" (how big of you) -- but why do you think the state should draw the line at homosexuality... while allowing other "deviant" sexual relationships in marriage to receive the benefits and protections of law?

[P.S. I am Kman. For some reason -- distraction, I guess -- I've been commenting here under two names].

[clarice]

My sympathies are torn. I agree that marriage is important for children and therefore for society. That for this reason we have written into the law various benefits for married couples (even though some will not ever have children).
OTOH, I acknowledge that some percentage of the population is homosexual and it seems unfair to deny them many of the protections available to others.

My biggest beef is that--like abortion--the courts seem to me to be overreaching. It might take longer for state legislatures to work this out, but the debates that proceed such actions are useful in forming a more informed and reasoned approach and likely to gain wider acceptance.

What we should not ignore is that there will be economic and social costs involved in such a substantial change.

[clarice]

I'm also angry that the NJ Ct had the chutzpah to base its decision on early gay rights legislation which its proponents claimed was "not a slippery slope". It seems to me the worst kind of bootstrapping.

[Sue]

Clarice,

33 years from now, will we still be arguing over same-sex marriage as we do over abortions? Or will it be like women's suffrage? A non-issue because some court somewhere didn't order it?

[Barney Frank]

Florence,

You are of course correct. The problem is that as soon as you mention children you are informed this problem is easily fixed by gay adoption.

The perennial answers to the effects of immorality are always either that if we only had a deep enough understanding we would realize that what has always been considered bad is actually good or just more immorality.

Tom Bethell wrote a very cogent essay a few years back on how chock full of fun a society of consenting adults is for everyone except children.

[anon]

Jane

There is no equal protection clause in the NJ constitution. I don't understand why you keep referring to one.

[anon]

Kman

Gays do NOT have equal protection of the laws if they are denied the benefits of marriage (or whatever you want to call it).

That is the courts opinion, yes. The courts opinion is wrong.

[clarice]

That's my point, Sue.

I also want to see some way of formally acknowledging these relationships and, if that should happen, their dissolution. It seems the opportunities for fraud will grow exponentially the more non-traditional arrangements carry with them financial benefits.

And then there's another slippery slope:What about long term roommates who are not in what we call "committed relationships"? I recall twin sisters who lived together until their deaths in their nineties. And so on and so forth.

Courts are ill equipped to deal with issues which are not before them and yet some rulings will certainly be stretched to cover factual circumstances the Courts never considered. Another reason for debate in legislatures over Court fiat.

[clarice]

OT: Steele creamed Cardin in a debate yesterday. He's pulled up a lot and Cardin just backed out of a NAACP debate with him.
Redstate (bless their optimistic heart) is calling for an upset Steele victory in Md.

http://www.redstate.com/sections/elections/2006

I really hope they are right. (Steele reportedly needs 25% of the Black vote to win and I doubt bailing out of this debate is helpful to Cardin. The Ehrlich-Steele team has been fantastic and creamed the old Kennedy machine which just assumed the Black vote would be theirs once before.)

[Sue]

I recall twin sisters who lived together until their deaths in their nineties.

And what about polygamy? Why should their 'rights' be denied?

[Jane]

BC,

I apologize for saying you were misrepresenting me purposefully, and I find it funny that you suggested I needed help im reading comprehension. Perhaps you see leaping to conclusions as other than a reading comprehension issue.

To answer your question I think how we do things makes a huge difference. Judicial fiat is wrong for a lot of reasons, I just don't buy the ends justify the means argument on much of anything. The worst part tho is that it screws with legitimacy. And that doesn't help gays or anyone else. It's just more to divide people.

This would be a fine point if I had been applying the term to marriage rather than sexual relationships

Wow, so now you want to legislate sex lives. WOW. I'd love to hear your definition or a normal sex life - well no, actually I wouldn't.

[Jane]

I said: So you advocate separate but equal?

Sue said: Why not? Men and women are separate but equal.

Well I can think of about a billion reason, but I was more interested in what you thought.

[Sue]

First...

Perhaps you see leaping to conclusions as other than a reading comprehension issue.

...then...

Wow, so now you want to legislate sex lives. WOW. I'd love to hear your definition or a normal sex life - well no, actually I wouldn't.

Just sayin' that all the leapin' isn't occurring on one side...

[Sue]

Well I can think of about a billion reason, but I was more interested in what you thought.

And I told you and have been telling you what I thought. You don't like what I think. I got that, too.

[BC]

Kman:

Well, if you want a clearer example, what about married (heterosexual) couples who engage in, say, S&M? Only S&M?

Were there to be a sudden wave of dom-sub pairs arriving in court to demand that the state sanction their lifestyle arrangements as marriages, I assure you that I'd be just as unthrilled about the notion as I am about homosexual couples arriving in court to demand that the state sanction their lifestyle arrangements as marriages.

You say that "happy to tolerate individuals' private sexual procilivities" (how big of you)

This is priceless. If I don't say something like that, then jerks like you will declare that I must want to invade people's bedrooms and ressurrect Bowers v. Hardwick. But when I do say it, all you can do is sneer. What a miserable asshole you are.

but why do you think the state should draw the line at homosexuality... while allowing other "deviant" sexual relationships in marriage to receive the benefits and protections of law?

Generally, because kinks practiced in the privacy of a het couple's bedroom are incident to the marriage, not the basis of it.

[clarice]

Jane: I'd love to hear your definition or a normal sex life - well no, actually I wouldn't.
Thank you from the bottom of my heart, Jane.

[clarice]

Where's Soylent?

Diana Irey is sponsoring a contest for the best TV or web ad for her campaign.

http://www.irey.com/news/contentview.asp?c=36930
(I'm thinking of Murtha talking about redeployment with the theme for Oklahoma in the background.)

[Jane]

<I believe you are conflating personal integrity with the broad scope of public virtue and morals.

Barney,

Really? One sort of leads to another in most cases.

Of course many gays are personally very decent people. But that says nothing about the effect on society as a whole of the normalization of homosexuality.

What do you see as that effect? And do you think the we should put society above the individual when it comes to homosexuality?

Many adulterers are otherwise very upright citizens but that does not mean adultery should be normalized.

Maybe we need a campaign to deny benefits to adulterers. Do you think that would work?

A society has a right to defend itself from those behaviors which as a whole tend to disintegrate that society. And gay marriage is one of those behaviors.

Can you expound a little bit on the impact it's had on you, or on society that you have noticed?

Alone, each brick taken out of the wall of traditional virtue is unimportant, until one stands back eventually and realizes there isn't a wall any longer.

Do we have any sort of working definition of "traditional virtue"?

Show me one society, especially a democracy, that has survived in such a state for very long.

How long is very long? I'm concerned about our democracy but more for the loss of individual rights than homosexual rights.

[BC]

Jane, let's review the bidding. I said:

I'm not happy to lend the state's official sanction to deviant (in the non-normative sense of the term, not the perjorative sense of the term) sexual relationships that bear no resemblance to traditional family units in the hope that this will encourage the benighted to accept or celebrate lavender fabulousness.

You replied:

Since fewer than 50% of all adults are currently married, it seems that institution is headed toward the non-normative sense of the term too.

Whereupon I said, in so many words, "Huh?":

This would be a fine point if I had been applying the term to marriage rather than sexual relationships, Jane.

To which you've now replied:

Wow, so now you want to legislate sex lives. WOW. I'd love to hear your definition or a normal sex life - well no, actually I wouldn't.

So, again: "Huh?"

[Jane]

There is no equal protection clause in the NJ constitution. I don't understand why you keep referring to one.

anon,

Gee, I'm pretty sure I never once referenced an equal protection clause in the NJ constitution. Can you reference where you think I did?

[Jane]

Were there to be a sudden wave of dom-sub pairs arriving in court to demand that the state sanction their lifestyle arrangements as marriages, I assure you that I'd be just as unthrilled about the notion as I am about homosexual couples arriving in court to demand that the state sanction their lifestyle arrangements as marriages.

Why would they need to arrive in Cour?. If they are heterosexuals they are free to have an S&M marriage. In heterosexual marriage the Court does not get involved in what sexual activity the couple engages in.

[Jane]

Thank you from the bottom of my heart, Jane.

Clarice,

YOu know my business partner thinks I am a fool for getting into these conversations. (Probably because she's working while I'm typing.) I will say tho that this issue, more than any others really makes conservatives sound like liberals to me.

[Patton]

So now Mark Foley can marry his former page..and the Democrats will approve??

[arrowhead]

Call it what you will, this issue is not about equal protection, tax benefits, personal sexual preferences, or even (in some states) gay adoption. It's about acceptance of the homosexual lifestyle by redefining it as marriage. You can change the wording, but society as a whole will continue to view "marriage" as a contractual relationship between a man and a woman.

[Patton]

When are we heterosexual males going to be allowed to marry other heterosexual males?

This is pure discrimination, only allowing gay men to marry each other, while us heterosexuals are forced to only marry within only half the population.

If two heterosexual males can't marry amd two gay males can't marry...where is the discrimination?

[Jane]

So, the gay marriage issue truly confuses me. Do we discard all of the academic studies as irrelevant now? Do we say the needs of children are less than the needs of gays? The biological realities are FACTS, not prejudices. How do we deal with them?

I think we disregarded all those academic studies when we allowed divorce.

[Patton]

Well at least now we can have the courts oder the legislation to make adult/child marriage legal, and two guys and one girl marriage legal, and three guys, two gay guys and an ox can marry....its gonna be great here in Sodom!

Certainly once the courts say that the parents don't have to be informed if their 13 year old wants an abortion, why do the parents have to know if she wants to get married...I mean comeon lighten up people...your such squares.

[cboldt]

The recent NJ decision is just one more step in social evolution (or de-evolution, depending on one's point of view), driven by ascending supremacy of the legal system over other pillars that resist social change (e.g., "the church"). The "new" society will be different from what came before it.

I see the progression in a similar light as nuclear proliferation - social evolution can be slowed, but not perpetually prevented. What's the big deal anyway? All that's happening is redefinition of the word "marriage." It seems that most people see homosexual relationships as "normal," whatever that is. I personally think that normalizing homosexual relationships is dangerous to society, but am indifferent to the eventual fate of Western Civilization - mostly because it changes on a scale that is well beyond my ability to influence. No sense in getting angst over the inevitable.

And for those who don't like the new society, or think it's wrong, take heart in the Amish, who successfully enforce a slower pace of social change. No individual is or can be forced to accept social mores at large.

[Jane]

So now Mark Foley can marry his former page..and the Democrats will approve??

A more interesting question would be why on earth you care.

[clarice]

Jane. Barry Goldwater was one of the first American political figures to speak out for gay rights IIRC.

(Sorry I treated him so badly when he visited the Univ of Wis and I was a snot nosed idiot.)

[BC]

Jane:

Why would they need to arrive in Cour?. If they are heterosexuals they are free to have an S&M marriage. In heterosexual marriage the Court does not get involved in what sexual activity the couple engages in.

I'm not sure what the purpose of this conversation is any longer. Are you saying that the fact that het couples may or may not engage in bionic seahorse sex, or whatever, argues in favor of treating homosexual relationships as normal?

[clarice]

Italiacto

[arrowhead]

Italics off.

[Rick Ballard]

At least we're not talking about that yucky podiatrist Foley anymore.

[clarice]

*THWACK*

[Jane]

Barry Goldwater was one of the first American political figures to speak out for gay rights IIRC.

It's just such a stupid thing to be opposed to, from my perspective.

My business partner's wife is a world renowned cardiologist. I can just hear her patients saying: "I don't want that lesbian saving my life".

Or maybe: "Go ahead and save my life, but don't you dare put your partner on your health plan!"

Of course they don't know she is a lesbian, because it is completely unrelated to what she does. So maybe when they find out after the fact they will demand she take out that valve, or pacemaker, or whatever.

There's justice for you!

[Patton]

"""A more interesting question would be why on earth you care.

Posted by: Jane """

Well, Jane. since you asked. Mr. Foley wants to rent the apartment above my daycare center. I would prefer to not rent the apartment to him and his young gay partner, BUT, now that it is legally recognized as a marriage, the courts would find me illegally discriminating against Mr Foley and force me to rent to him or pay him money.

And you know how liberals despise Mr. Foley.

In addition, Mr. Foley has requested that his marriage ceremony take place in the park next to our church that rents it out for such purposes. Of course if the church tells Mr. Foley he can't - they would be guilty of discrimination.

Even though the church is having a Toddler/PreK get together at the church, they will have to also allow Mr. Foley (the despicable one) to invite 400 of his gayest friends to get together next to the Pre-K kids.

Are you getting the idea at all yet??

Whether people like it or not, the force of law will be used to expose all kinds of people and activities to the 'gay page lover lifestyle'.

Man, how long ago was it that everyone was calling him the despicable low life scum Foley, now they want me to rent him an apartment and have his wedding with my Pre-K class.
He sure became quite respectable awful fast!

[Barney Frank]

Jane,

One sort of leads to another in most cases.

Not necessarily. An individual can practice the highest individual and personal integrity while engaging in behaviors that undertaken by millions of people can be quite corrosive to society.
A high functioning alcoholic who only drinks in private might lead a life that has no ill effects on anyone else but that hardly means alcoholism is something society should sanction.

What do you see as that effect?

As I stated, the normalization of homosexuality is one brick of many being taken out of a very important wall. The overall effect of removing those bricks is self evident in the social dissolution we see around us. Whether the preoccupation with sex and promiscuity in any and all forms, the breakdown of familes, abuse of women and children, need I go on? Those cannot be laid at the feet of homosexuality per se, but they most certainly can be laid at the feet of the ethic which the normalization of homosexuality is part of.

Maybe we need a campaign to deny benefits to adulterers.

Well, we used to have something similar to what you suggest in that adultery was grounds for divorce and carried financial consequnces. It hardly seems tenable that marriage was strengthened by the removal of those consequences with no-fault divorce.

Can you expound a little bit on the impact it's had on you, or on society that you have noticed?

Asked and answered. Its part of the whole cloth of moral bankruptcy which has transformed our society since the sixties.

Do we have any sort of working definition of "traditional virtue"?

I do. Among them are self restraint, selflessness, propriety, self denial and self sacrifice for our children. No doubt some gays possess these virtues but they are not prevalent and to the extent they are no longer prevalent amongst heterosexuals buttresses my argument for reinforcing these values not that they should be abandoned.

How long is very long? I'm concerned about our democracy but more for the loss of individual rights than homosexual rights.

Since it can take centuries for a society to fully crumble, show me a society prior to 1900 that survived such an ethic. If you are concerned about individual rights then you even more so should be in favor of society enforcing its norms. It is when societies devolve into moral turpitude that authoritarianism arises to contain the inevitable accompanying chaos. Then nobody has any individual rights.

Incidentally, thanks for debating so congenially.

[Patton]

So Jane, your 17 year old daughter is off to college..and being non-discriminatory
the college provides housing for her, and her roomates, those roomates being a married lesbian quad couple. Thats a four person marriage, just made legal in Massechusetts as being consistent with the Constitution. So you have a 40 year old butch biker, a 32 year old strip dancer and a 22 year old paint huffer all married to your daughter 16 year old roomate and the college NOR YOU will discriminate in anyway against their lifestyle choice??

[arrowhead]

"My business partner's wife is a world renowned cardiologist. I can just hear her patients saying: "I don't want that lesbian saving my life".

That's just it. Patients choose their physicians based on compentency - not sexual preference or marital status.

[arrowhead]

that's "competency"

[boris]

Questioning what harm instituting gay marriage causes misses a real point. Marriage law is subject to modification and change just as any other law is. Legal changes to the traditional form of marriage would be primarily evaluated by their effect on having and raising children. A legal requirement that "gay marriage" or civil unions have exactly equal application means any future changes to the institution will have to serve the new constituency as well. Clearly that new constituency should have an equal say.

Demanding that skeptics of the new institutional constraints predict what negative effects this will have in the future is unfair. This development will certainly have some effect at some future time since those decisions will be made serving a wider group beyond just reproductive interests it is only logical to expect those decisions will be less than optimal from the traditional perspective.

Perhaps that means, instead of harm, a less optimal evolution in the institution of marriage. Let the proponents claim and defend that future descendents will not be worse off as a result.

[Sue]

The whole point is even when you are doing something that you feel is the right thing to do, there are unintended consequences. Take the income tax for instance. There was discussion as to whether or not to set the limit to 10% (IIRC) and those opposed to limits argued it wasn't necessary, the country would revolt before allowing a tax of more than 10%, why, it would never even reach that unrealistic amount. When those who argued that opening the widow's and orphan's pensions to allow unmarried mothers to be included, those who argued for it said it wouldn't create more unwed mothers, society wouldn't allow it. When they discussed abortions, the same argument. It wouldn't cause an increase in abortions, society would prevent it. All (well, with the exception of the income tax) noble ideas and worthy causes. With unintended consequences.

I wonder why we still need legislatures, though. It seems to be an expense that is past its prime. All we need are justices.

[MayBee]

Jane:A more interesting question would be why on earth you care.

I fully support gay marriage.
At least I always think I do, until I read about the 1st graders in public school being read "The Prince and the Prince" (or whatever its called), and then I realize I'm not ready for that. Or rather, society isn't ready for that. (it really is ok with me)

The truth is, we do want to make rules about who can marry and who can't and it seems some are in the process of wanting to change some of those rules. What's the best way to do it? I agree with much of what Clarice says.

A good mental excercise for me is to imagine people I don't want society to agree should marry. Mother and Son. Father and daughter, brother and sister, Man and child, Nurse and comatose patient. And how would I be convinced they have the "right" to marry because of the equal protection clause?

It isn't enough to just say what business is it of yours? Because society and culture is all about defining what is acceptable for our own and others' behavior.

That's why gay marriage has to be a discussion, and a decision based on what people are willing to accept. Otherwise, what is marriage (or a civil union) at all?

[Jane]

If you are concerned about individual rights then you even more so should be in favor of society enforcing its norms.

Barney,

You make an articulate case, that I don't agree with, but see no reason to rebut since you are absolutely entitled to your opinion.

I do want to respond to the part I referenced above tho. My life has been lived completely outside of the societal norm. I won't bore you with the details, but I really can't think of anything that fits that model, except maybe that I'm a heterosexual. So while I can understand cleaving to that, it really would have not equipped me well. Sometimes success depends on just the opposite I think.

And for the record, the most enduring lesson that I was raised with is the belief that differences are the most interesting thing in the world. I'm pretty sure that's not the norm either.

Thank you for a great discussion.

[Extraneus]

Personally, I don't see why the government is involved in marriage in the first place, except maybe to assure divorce lawyers a steady stream of income (who undoubtedly are crossing their fingers and/or praying for gay marriage, depending on their religious preference for really really hoping for something.)

I think it will be helpful to see NJ list those legal and financial benefits which supposedly accompany the state sanctioning of marriage. This would itemize the legal benefits which could just as easily be negotiated in a contract.

[Jane]

Patients choose their physicians based on compentency - not sexual preference or marital status.

Yet they think they should have a say in that person's benefits? Save my life, but don't you dare try and put your wife on your health insurance. I find that idea hilarious in the scheme of things.

[Jane]

Let the proponents claim and defend that future descendents will not be worse off as a result.

I think they are in the process of proving it. And my guess is some gay parents will be great parents, and some will screw their kids of royally - probably at the exact statistical level that happens today.

The only thing different is they deal with more prejudice. It's not like they are the first or the last. But no matter how you look at it, it's a done deal.

[boris]

Yet they think they should have a say in that person's benefits?

Bit of a straw dummy isn't it?

Haven't seen anybody make that claim. There's no law against providing health insurance benefits to non traditional family members.

[MayBee]

Yet they think they should have a say in that person's benefits?

It's weird to me to be talking about marriage in terms of benefits. I didn't get married for the benefits. I've lived in several states and 3 countries as part of a married couple, and my rights and benefits as a married woman have been different every place I've lived, depending on the laws of that place. Yet I never thought twice about the state of my own marriage being any different. I never felt less or more married.

[Jane]

Bit of a straw dummy isn't it?

Actually it is anything but.

There's no law against providing health insurance benefits to non traditional familythe point of all the litigation you see going on. members.

Are you kidding? Oh I see, you are talking about adding a "non-family" member for an additional premium because she doesn't qualify for the spousal rate. Well that's no straw man, that's a major judicial basis for all these Court decisions you disagree with. That's the road in.