Vermont Leads The Way

A legislature approves gay marriage and gets it into law.  OK, California came close, but eventually the issue was settled in the courts.

MONTPELIER, Vt. -- Vermont on Tuesday became the fourth state to legalize gay marriage _ and the first to do so with a legislature's vote.

The House recorded a dramatic 100-49 vote, the minimum needed, to override Gov. Jim Douglas' veto. Its vote followed a much easier override vote in the Senate, which rebuffed the Republican governor with a vote of 23-5.

Vermont was the first state to legalize civil unions for same-sex couples and joins Connecticut, Massachusetts and Iowa in giving gays the right to marry. Their approval of gay marriage came from the courts.

Comments

[seb]

Good: Gay Marriage done the right way.

[clarice]

Ditto.

[Jane]

Me too. Finally a day that the gays can celebrate. When I told Amy she said:

"What happens to my civil union?"

It sure is complicated when you are gay.

[Jim Rhoads a/k/a vjnjagvet]

Questions:

1. Do these developments mean that gay unmarried couples will be considered by their peers to be "living in sin" if they don't rush to MA, VT or IA to get married?

2. What will be the quicky divorce state of choice for those gay marriages that don't work out?

3. What percentage of gay couples will opt for marriage?

4. Will the percentage of gay marriages that fail be any greater than the experience in heteroland?

5. Will they call a lesbian who fails to pay child support a "deadbeat dad"?

[Appalled]

Jim Rhoads:

As long as gay divorce looks like gay marriage (with the same degree ofproperty division hell, child support, alimony, etc), then there is nothing to complaim about from a civil point of view.

Agree that this is the way to do it, and that the Iowa way is a bad, bad idea. (When the Warren Court made all those civil rights decisions, the amount of law changing really had more to do with actually going back to the original intent of the 13th, 14th and 15th amendments. Nobody can argue gay marriage as an original intent item.)

[Charlie (Colorado)]

1. Do these developments mean that gay unmarried couples will be considered by their peers to be "living in sin" if they don't rush to MA, VT or IA to get married?

It will come up about as often as it does for het couples living together.

2. What will be the quicky divorce state of choice for those gay marriages that don't work out?

Despair.

3. What percentage of gay couples will opt for marriage?

(0 ≤ x < 1.0) × 100.

4. Will the percentage of gay marriages that fail be any greater than the experience in heteroland?

Probably. Practice makes perfect.

5. Will they call a lesbian who fails to pay child support a "deadbeat dad"?

I like it.

[Jim Ryan]

5. Will they call a lesbian who fails to pay child support a "deadbeat dad"?

Sure. But don't forget to call the anonymous sperm donor that, too.

[Cecil Turner]

Interesting. Gotta admit being surprised at the vote, but otherwise can't get too excited about it.

There will probably be some "full faith and credit" issues, but those can legitimately be hammered out in court (IMHO).

[Jim Rhoads a/k/a vjnjagvet]

It may also take the heat off of California for a while.

A good winter ski trip to the east for marriage aint' a bad way to kill two birds with one stone.

How's that for mixed metaphors?

[Fresh Air]

Cecil--

The "full faith and credit" clause will result in this whole mess being kicked up to the Supreme Court. Then we'll get another round of litmus-testing for the next nominee. Cripes, I am so sick of social issues being tossed into courtrooms.

[Charlie (Colorado)]

Cripes, I am so sick of social issues being tossed into courtrooms.

Fresh, I sympathize, I suppose, but that's why we have courts.

[Pofarmer]

So, what's the point of gays being "married" when a civil union does the same thing?

[Jane]

Actually full faith and credit has always been the proper course if you are in favor of gay marriage. I can't see how the Supremes could rule otherwise - the conservatives will follow the Constitution and the liberals will vote with their feelings - it should be unanimous.

[Jim Rhoads a/k/a vjnjagvet]

PO:

Sociologically, nothing. Logically, nothing. Emotionally, everything.

[Charlie (Colorado)]

So, what's the point of gays being "married" when a civil union does the same thing?

What's the point of having two categories if they do the same thing?

[Ignatz Ratzkywatzky]

I guess it's a sign of the times, and not a good one, that this news is met with either applause or indifference at an ostensibly conservative blog.
This Maggie Gallagher column is still one of the best essays on why conservatives and libertarians who care about their culture and limited government should care about this issue, despite being slightly dated as it was prior to the Nov California vote.
It is especially worthwhile to read page three. She is right that this is not about the somewhat narrow issue of gays being able to marry and never has been. It's about transforming society and in no small way.
I serve on my church's board of directors and prior to the Nov vote last year we faced serious legal issues about impending lawsuits regarding any number of legal penumbra, as the judges like to say, emanating from the CA Supreme Court's decision legalizing gay marriage. We will again face them if it strikes down the Nov amendment or a subsequent amendment repealing Prop 8 is passed.
I'm not sure how a conservative, which I had come to believe values limited government and tradition could either approve or not care about this issue.
Speaking as more of a libertarian than a conservative I have a hard time even seeing the libertarian argument for it. As a libertarian I want the government to stop intervening in private matters, which is why I opposed the bailouts and am in favor of drug legalization. But being a libertarian doesn't mean I view the society I live in as some cobbled together construct to be yanked around by every idiotic 'civil right' or 'equal protection' cause conjured out of thin air, especially those promoted by the left and their vanguard of statists who view this issue quite correctly as one of the most important means to transform our society into one modelled on their disasterous worldview.
In fact as a libertarian I believe I may value society more highly than conservatives or liberals because a government as limited as I prefer needs a strong and virtuous society to complement its limited role. The last thing the left is promoting is a strong and virtuous society and the last thing kicking more support out from under an already weakened institution is going to produce is a strong and virtuous society.

[Steve]

Keep up the great posts! Your site should be required reading!!

COMMON CENTS
http://www.commoncts.blogspot.com

[Uncle BigBad]

OT - Jim Miklashevski was just on MSNBC reporting on Obama's trip to Iraq. He said he'd "never seen such an outpouring of support for a president as from those cheering troops."

Unfortunately, in the accompanying video, the camera stayed tight on Obama's face and didn't pull back to get a panoramic view of the cheering troops.

[Charlie (Colorado)]

Ignatz, there's a distinction between judges changing society, and society changing. Society changes.

if it's any consolation, my grandfather was convinced that US was doomed when Loving v Virginia was decided, but we none the less have managed to survive that change in the tradition of marriage.

[matt]

I'm with Ignatz on this one. There is very little left of a virtuous society today, it seems, on a wide range of issues.Whether it's duty, honor, country or simply ethics, we are governed by the id, not the superego. Societies are built and sustained by virtue and ethics, by purpose and individual and collective drive for the greater good.

Today, we are faced with a society whose greatest question is "what can I get away with?. How far can I push the boundaries?". The Bohemian has become the norm rather than the exception. We have a society that is collectively in rebellion against itself. When an entire society is counterculture, what then is the new counterculture? Are we in fact happier, more satisfied with our lot, or less so? Objectively, what have we accomplished? What will distinguish our legacy 1,000 years from now?

[Ignatz Ratzkywatzky]

Charlie,

Loving v Virginia is precisely the problem. Homosexuality and race are not equivalent. If you don't believe me ask any non-leftist black person whether they are and be prepared for a good bit of anger a lot of the time.

Of course societies change, often for the worse and sometimes to destruction. They often change because they are under assault and simply grow tired of resisting. The left has an active effort to transform our society radically and a good portion of the right agrees, no longer cares or has been shamed into silence.
Countries and governments reflect the society that they spring from. I don't think it is likely we will keep our economic or political freedoms if we allow the left to substantially complete their transformation and this is a part of it.

[Cecil Turner]

I'm not all that hard over on the cultural issue, so it's hard for me to get too worked up over it. (Though I probably won't be using the term "marriage" to mean anything other than the traditional type anytime soon . . . but that's a personal issue.)

On the political side of things, I think the fact that this was voted through the legislature makes all the difference in the world. If the citizens of Vermont have a problem with their elected representatives' view of things, they can replace as many as needed to get the desired results . . . or decide it's not that big a deal. In any event, the process is as responsive to the will of the people as that sort of thing can be. And speaking from my own personal viewpoint, respect for the democratic process, rule of law, and the underlying social contract makes this an acceptable result . . . even if I would've voted the other way.

[PeterUK]

This will really endear you to the RoP.
"America is not at war with Islam" however the tenets of Islam are a different matter.

[Jane]

On the political side of things, I think the fact that this was voted through the legislature makes all the difference in the world.

Me too. Imagine if Connecticut had a legislature that concluded a right to privacy instead of a Court. We wouldn't still be arguing about Roe. As you said, it makes all the difference in the world.

[Danube of Thought]

"...but that's why we have courts."

Deciding "social issues" is not exactly my understanding of why we have courts. Such issues are properly decided in the first instance by legislatures, and a consitutional issue is presented only where the issue was clearly intended to be addressed in the constitution. That's why in my opinion the D.C. gun control case was nearly as wrongly decided as Roe v. Wade, even though I liked the outcome.

I voted against the gay marriage ban in California, but my side lost. I hope we'll win the next time around, but I don't want the courts to have anything to do with it.

[Charlie (Colorado)]

Ignatz, all this is dependent on your notion that legal restrictions on homosexuals aren't equivalent to legal restrictions on blacks. Your argument for that is to suggest that blacks who aren't leftists would agree with you. But I'm, if not black, at least not white, and I don't agree with you. Still, I don't think I'm a leftist.

In any case, it's a fallacious argument, ad hominem circumstantial.

So you say "Homosexuality and race are not equivalent." Why? It looks pretty strong that they're both genetically determined. They're both things that are rejected in our society, but not in others. Matt suggests that this shows a loss of "virtue" -- another use of the word, it's a fun one -- but I'm sure Granddad would have said the thing about interracial marriage. Certainly it's the case that this is the result of an effort to change society — but then so was Loving, and so, for that matter, was the American Revolution.

It was certainly the case when Loving was decided that sex was taking place between black and white people; they even lived together. They could marry in some states but not others, just as homosexuals. People say there are religious objections -- so did my grandfather.

[Charlie (Colorado)]

Deciding "social issues" is not exactly my understanding of why we have courts.

Isn't it? Isn't the whole point of including judges and jury trials to allow courts to deal with social issues?

[Charlie (Colorado)]

Damn. preview is only your friend when you don't hit the post button by accident.

So let's propose a hypothetical. The argument is offered that it's the job of the legislative branch to make changes of this kind of social norm. So, was Loving wrongly decided? If some state were now to pass a law restricting marriage between blacks and whites, and removing recognition from existing marriages between blacks and whites, would that be acceptable?

[JM Hanes]

Ignatz :

"I guess it's a sign of the times, and not a good one, that this news is met with either applause or indifference at an ostensibly conservative blog."

I tend to find it encouraging, and not just because I'm a social liberal. I think it's always been a serious mistake to frame social & cultural questions like gay marriage and abortion as partisan political issues, whether it's being done by Republicans or Democrats. Politicians will always welcome soapboxes to stand on, but if nothing else, the vote on Prop 8 in California, and the public response to "comprehensive immigration reform" a la John McCain, demonstrate that there are a host of issues where sticking a left/right label on one position and the other is arbitrarily divisive and adversarial.

The conservative position here, it seems to me, is that such matters should be settled through legislation, not adjudication, and wherever possible and practicable, by state, not national, legislatures. That's where individuals have the most say in the laws which govern their day to day lives.

[Ignatz Ratzkywatzky]

If the argument is that anything a legislature decides is, on it's face, a good thing, then it's a very bad argument.

If the argument is not that anything a legislature decides is a good thing then the only question is, is this a good thing? Haven't seen any arguments that convince me or even try to convince me it is, other than 'it's the right thing to do'. That's a slogan not an argument.

If the argument is that it is better for the legislature to enact this type of law rather than the courts, that seems fairly obvious but still does not answer the question as to why this particular thing is a good thing.

Charlie, I did not of course mean that every single non white, non leftist in existance would hold that view, but a very great many do, especially blacks.

[Soylent Red]

As a states' righter, I applaud this. And when the state of Vermont's elected officials vote to make gay marriage illegal, I will applaud that too.

I'm from Nebraska and live in Virginia. What they do in Vermont makes no difference to me, until they try to make me do it in Nebraska or Virginia.

[Charlie (Colorado)]

I'm from Nebraska and live in Virginia. What they do in Vermont makes no difference to me, until they try to make me do it in Nebraska or Virginia.

Soylent, I'm really pretty certain that no one is going to make you get intoa gay marriage.

[Pofarmer]

Isn't it? Isn't the whole point of including judges and jury trials to allow courts to deal with social issues?

The purposes of judges and juries is to uphold the law.

all this is dependent on your notion that legal restrictions on homosexuals aren't equivalent to legal restrictions on blacks

So, what legal restrictions are there on homosexuals?

[Bob Wood]

Altho surely a rhetorical question, "Question, Do these developments mean that gay unmarried couples will be considered by their peers to be "living in sin" if they don't rush to MA, VT or IA to get married?", an equally rhetorical answer would be, "why would homosexuals or liberals be concerened with the 'sin' issue?"

[Rebel]

Insanity! Common Sense is not so common anymore. Blatant ignorance has become the norm & whomever utter a word against it, is censored, shunned,condescended and accused of being hate-mongers. That's also insanity! Real marriage is ordained by Our Creator and He is the only One that can ordain a marriage regardless of what the court decrees. God loves all people regardless of their sexual choices. Yeah, I said it; Sex and however we choose to do it, IS a choice unless it's a crime involved. But He/God/Our Father disdains all sin. There is no sacred sin. What made the civil rights movement so effective is the fact that the foundation was a righteous cause. Accepting a lie as truth is the path to mental illness.

Your heavenly Father loves you-the real you and so do I. Love exhorts and speaks truth no matter what! Arrogance condescends.

[Danube of Thought]

"Isn't the whole point of including judges and jury trials to allow courts to deal with social issues?"

No, not at all. The function of a jury is to find facts, and that of the judge is to apply existing law to those facts. A jury has no lawful power to decide what is the correct or incorrect position to take on a social issue, and a judge has none if has been addressed by the legislature and the legislature's judgment is not unambiguously forbidden by the constitution.

[Charlie (Colorado)]

Charlie, I did not of course mean that every single non white, non leftist in existance would hold that view, but a very great many do, especially blacks.

So? Its still ad hom circ. Besides, I'm pretty sure there were a lot of blacks in 1940 who thought blacks shouldn't marry whites. Hell, there are a fair lot of them today.

If the argument is not that anything a legislature decides is a good thing then the only question is, is this a good thing? Haven't seen any arguments that convince me or even try to convince me it is, other than 'it's the right thing to do'. That's a slogan not an argument.

Okay, what's the argument that blacks and whites marrying is "a good thing to do"?

Anyway, here's your argument: it's a good thing to do because homosexuals under the law aren't any diferent that heterosexuals. Men, uner the law, generally have the same rights as women. (Some of the differences, like the exclusion of women from combat, I think are bad ideas as well.) An individual, under the law, is generally free to choose business partners, who they want to give a power of attorney, who they want to room with — epecially since cohabitation laws seem to be generally a dead letter — and in general which body parts they want to rub where, at least by mutual consent of competant partners. (Unpaid consent, at least in most states.)

Two gay people who want to exercise these rights can do it, at great difficulty and expense, with continual legal messing about, and with the likelihood of needing to litigate to enforce those agreements at the least convenient possible times. Straight people can get the same effect for less than $100 in Vegas, and get a complementary glass of champagne in the bargain.

It's undesireable to force special restrictions on some people over others. Doing away with those restrictions is a good thing.

[Danube of Thought]

It's pretty clear to me that what Soylent means is not that he is going to be made to enter a homosexual marriage, but that his state is going to be made to recognize such marriages under the full faith and credit clause of the constitution. My state, too. That wouldn't bother me except to the extent that I will be taxed by the state to bear whatever costs are attendant to that recognition, even though the people of my state haven't voted to do so. But my understanding of the full faith and credit clause is that it does indeed require that result.

[Danube of Thought]

*none if it has been addressed*

[Charlie (Colorado)]

The purposes of judges and juries is to uphold the law.

Fine argument, there, Po. Got the slogan generator all warmed up I see.

So, what about when "the law" has a conflict?

So, what legal restrictions are there on homosexuals?

Two people of the same sex must spend great amounts of money and effort to achieve the same contractual relationship under the law that an opposite sex couple can construct for a $20 license.

[Danube of Thought]

"like the exclusion of women from combat, I think [is a bad idea] as well.)"

I think whether it's a good or a bad idea depends on the type of combat. I see no reason why women can't fly combat aircraft, and unless I'm mistaken they not only do so now, but they fly them on combat missions. Because of the inherent differences if physical strength between the sexes, I think allowing women in infantry or airborne units would be a bad idea.

[boris]

Not where there is civil union.

[clarice]

DoT I think it is an interesting, still unresolved question whether a state which doesn't recognize same sex marriages must recognize one entered into in a state which deos and whether DOMA is constitutional.

[Charlie (Colorado)]

DoT, I'm not a lawyer, as you know, but :

No, not at all. The function of a jury is to find facts, and that of the judge is to apply existing law to those facts. A jury has no lawful power to decide what is the correct or incorrect position to take on a social issue, and a judge has none if has been addressed by the legislature and the legislature's judgment is not unambiguously forbidden by the constitution.

This seems like it has a lot of issues. Again, let's look at Loving v Virginia. It's certainly less than clear that restricting the right of black and white people to marry is "unambiguously forbidden" by the Constitution — hell, it took until 1967 and a SC decision to establish it, 102 years after the 14th Amendment. So are you really arguing that miscegenation should be illegal if a state votes that law, and that miscegenative marriages shouldn't be recognized under full faith and credit iin Virginia if so?

Hell, in some states, my parents couldn't legally marry when they married in 1955. Oh, it wasn't really enforced, but Indians were "colored" in many states, and being Choctaw, it's a fair chance that I'm even black under a one-drop rule.

When I was in high school, it was widely known that you could drive down to Raton NM for a "quickie marriage" — NM had no waiting period and no blood test, and Colorado did. So someone could be legally married in a way that wasn't legal under Colorado law. Still, as I recall, there was no question it was a legal and enforceable marriage.

[Thomas Jackson]

Our nation needs more unions like Barney Franks. Its so progressive!

[Charlie (Colorado)]

Because of the inherent differences if physical strength between the sexes, I think allowing women in infantry or airborne units would be a bad idea.

I used to date this 6 ft blonde amazon who could run a mile in a bit over 6 minutes and deadlifted 300 pounds. Should she be restricted from being in the Infantry when a 5'6" 130 lb male with glasses wouldn't?

[Charlie (Colorado)]

Not where there is civil union.

Sigh. If only my marriage had been a civil union.

[Charlie (Colorado)]

Sorry, boris, was that meant to be a reply to me?

Okay, can a het couple "marry" in a "civil union" or is that only for same-sex couples?

[Jane]

Two people of the same sex must spend great amounts of money and effort to achieve the same contractual relationship under the law that an opposite sex couple can construct for a $20 license.

This is a little off topic but it's not that much money and I personally think things like marriage should be difficult, particularly given the current state of divorce. (and of course I mean for everyone not just gays)

Clarice, I do think DOMA is unconstitutional (or at least I did the last time I looked at it) and I also believe that full faith and credit will break the back of the anti-gay marriage coalition.

It won't go easy tho.

[boris]

can a het couple "marry" in a "civil union"

At least civil union can be defined however a state would like. To a certain degree changing the meaning of marriage is sorta like changing the value of pi.

[Charlie (Colorado)]

Boris: At least civil union can be defined however a state would like. To a certain degree changing the meaning of marriage is sorta like changing the value of pi.

So when the Supreme Court decided the Lovings were entitled to be legally married, was that like changing the value of π?

Jane: This is a little off topic but it's not that much money...

I don't know about that. See the "how much is that marriage in the window" article I linked above. in Colorado, at least, it would be thousands of dollars, and it's "brittle" — every time you buy real property, or something like that, you have to pay an attorney to re-draw papers. My local att'y friend estimated about $10K to start, and you still run into things like gift tax if one partner wins the lottery.

[David Pecchia]

This is not as clear-cut a case as it may seem: The Vermont Supreme court forced the legislature (back around 2000 or so) to either enact gay marriage or civil unions.

They put in civil unions, which were identical in every way with marriage except the name. Now, 8-9 years later, they are just putting in the finishing touches.

[Pofarmer]

So, what benefits accrue to society by recognizing gay marriage?

Also, I notice that this was a vote by the VT legislature. I wonder, what would have been the result of a popular vote of the citizens? Actually, I don't wonder, the fact that they DIDN'T let the citizens vote probably speaks to that.

[sbw]

Did some tongues just get spoken?

[Charlie (Colorado)]

So, what benefits accrue to society by recognizing gay marriage?

What benefits accrue to society by recognizing marriages among heterosexuals?

[clarice]

Intapundit thinks that unless DOMA is repealed it will prevent states from having to give full faith and credit to these marriages and he doesn't think Obama will push for it.

[clarice]

I'm afraid that whatever I may think about same sex marriages I do not see the same constitutional mandate that I saw in the anti-mesegenation statute in Loving.And because that's how I see it, I agree with Glenn--DOMA will control the matter unless it is repealed.

[clarice]

**micegenation**

[Charlie (Colorado)]

They put in civil unions, which were identical in every way with marriage except the name. Now, 8-9 years later, they are just putting in the finishing touches.

Actually, following up with Po's point, if there are civil unions that are identical in every way with marriages except for being open to same-sex couples, what would be lost by simply making them all civil unions?

If your minister or priest performs a marriage ceremony but signs a civil union license, are you less married?

If my priest -- being a Buddhist, and thus having no religious "sacrament of marriage" -- performs a wedding (God forbid) on me, and signs a marriage license, am I less married in law than you are?

[Charlie (Colorado)]

I'm afraid that whatever I may think about same sex marriages I do not see the same constitutional mandate that I saw in the anti-mesegenation statute in Loving.

Why?

[JM Hanes]

Ignatz

"If the argument...."

The argument concerned what is/isn't or should/shouldn't be a politically conservative position on the question. Whether one approves or disapproves of gay marriage is not an inherently partisan issue -- the vote on Prop 8 in California clearly suggests that there are social conservatives on both left and right. The JOM reaction to the Vermont vote suggests that there are also social liberals on both left and right.

It's worth contemplating that, as you yourself note, the one thing that does seem obvious to almost all of us on "an ostensibly conservative blog" is that "it is better for the legislature to enact this type of law rather than the courts." That's essentially why I would called it the only inherently conservative position here.

[Pofarmer]

What benefits accrue to society by recognizing marriages among heterosexuals?

Just the base of society.

[Charlie (Colorado)]

Just the base of society.

So if that's the base of society, and homosexuals get married, will married heterosexuals stop being the base of society?

[Charlie (Colorado)]

"micegenation"

That is a tough one, misn't it?

[clarice]

"miscegenation" is even harder but then I am typing with one arm wrapped in a dripping ice pack tonight so forgive my worse than usual typos.

Why do I not feel that the prohibition against same sex marriages has the same constitutional infirmity as anti-miscegenation laws? A lot of reasons, most importantly because hetero marriages have been normative since recorded history. Prohibitions on miscegenation existed only in a small part of the world for a few hundred years.

Miscegenation may have been unthinkable to the Founding Fathers though I am not certain of that, but I am certain same sex marriages were.

[Charlie (Colorado)]

"miscegenation" is even harder but then I am typing with one arm wrapped in a dripping ice pack tonight so forgive my worse than usual typos.

What happened?

[JM Hanes]

"At least civil union can be defined however a state would like."

That sounds like an argument that gays might make against having to make do with civil unions instead of marriage. It would also seem to make it harder to contend that civil unions should suffice for gays if the term has no particular legal meaning.

"To a certain degree changing the meaning of marriage is sorta like changing the value of pi."

Let us know when you get that degree measured. Also, could you point me to the current legal definition of pi that I would have to amend should I seek such change?

[Scott]

It seems to me the "rights" of marriage concern mostly our tax code and some assumptions about inheritance. So to answer both PO and Chaco- there are no societal benefits to marriage of anyone. Merely our acknowledgement of past practices. We can go into insurance and medical decision but these decisions aren't empiracally tied to marriage.
I have heard some say marriage leads to a more orderly society- So can an orderly society exist without using common standards of marriage? Others have implied marriage is society way of managing procreation. I tend to think that procreation would occur anyway.
So why have non-religious marriage at all?

[Charlie (Colorado)]

A lot of reasons, most importantly because hetero marriages have been normative since recorded history.

Everywhere? Or only in societies that derived their norms from Mosaic traditions?

[Greg Q]

OK, California came close, but eventually the issue was settled in the courts.

No, CA didn't come close. The State Legislature tried to game the system by ignoring the fact that Prop 22 had defined Marriage as being between a man and a woman, and therefore blocked the Legislature from unilaterally acting on the question. A legitimate CA law would ahve acknowledged that it was overturning Prop 22, and sent things off to the voters. Knowing they couldn't win, they ignored the law a tried to do an end-run around the voters.

VT's veto override is the first legitimate vote for SSM in US history.

[MayBee]

"micegenation"

I thought we were back to the lemmings.

[boris]

what would be lost by simply making them all civil unions?

It would be more honest than changing the meeaning of a word that already has one.

an argument that gays might make

I see, change is okay only once.

You did realize there has been attempts by law to change the value of pi to be exactly 3 didn't you?

[clarice]

Once upon a time in the real world children with families who did not stay together had little chance of making it.(They still don't but we pretend that state supplied succor can make up for that.) Given that fact, societies acknowledged that it was a good thing to grant special recognition to married couples and to encourage them in a variety of ways--including draconian divorce laws--from breaking away.

At the same time the nurturing of the young was considered a social benefit to society and the diminished resources of those who engaged in this was also recognized. Therefore we had survivors' SS benefits to widows for the hidden reason that we anticipated (and often in one way or another required) that they not be gainfully employed outside the home and therefore needed old age assistance. We also offered tax deductions to parents to help defray some of those costs, and we encouraged health insurance companies to provide for the families of those workers covered.
If we are going to change all this by recognizing same sex marriages, how will this effect these and a host of other programs (and funding for them)?(I'm not saying we cannot, only that I see no sign that anyone is seriously addressing this or the additional costs involved.)

(*Chaco--a very bad case of bursitis and a stubborn resistance to getting the swelling lanced and beginning a course of cortisone shots.)

[Charlie (Colorado)]

So why have non-religious marriage at all?

Scott, it's sort of leaping ahead on the whole Socratic thing, but that's very much the same place I end up. The notion of a Marriage ordained by God — or by Tradition, which always struck me as a kind of covert appeal to religious tradition — doesn't seem to me to be particularly vulnerable to rational argument. The notion that there should be some kind of contract of civil partnership with the properties we give Marriage seems plausible as well, although if I were King I'd set up more flexibility in it.

It just seems really hard to justify the idea that this civil partnership shouldn't be available to one pair of people when it is to another seems pretty tough to justify, what with the 14th Amendment and all.

[boris]

only in societies that derived their norms from Mosaic traditions?

You mean like the Romans, Greeks, Egyptians, Persians ... golly ...

[Charlie (Colorado)]

I see, change is okay only once.

As a potential putative black person, I've got to say I agree.

[boris]

doesn't seem to me to be particularly vulnerable to rational argument

How would you know?

[Soylent Red]

I'm really pretty certain that no one is going to make you get intoa gay marriage.

Chaco:

You got that right brother.

[Charlie (Colorado)]

You mean like the Romans, Greeks, Egyptians, Persians ... golly ...

Yeah, just ike them, except for the Romans — gay long term relationships like marriage until after Christianity became the state religion — the pre-Christian Greeks, the pre-Islamic Persians, and the Egyptians ... who all accepted long-term committed homosexual relations.

Sorry, I guess that's everyone on your list. Got another list?

[JM Hanes]

"You did realize there has been attempts by law to change the value of pi to be exactly 3 didn't you?"

It wouldn't change my question if there had been umpteen attempts or none. I was just asking where and when it was legally defined. I'd also be curious to know if you think that changes in divorce law also qualify as attempts to change the meaning of marriage.

[srp]

There's actually a pretty strong Burkean argument for gay marriage in places like CA and VT, if you like that sort of angle. Basically, the argument says 1) the law ought to follow the customs and values of the people and 2) lots of gay and lesbian couples are already living in very married ways--co-owning houses, raising kids, etc. If they were hetero they'd be common-law married in those states that have the rule.

The days when people thought of gays as furtive perverts or flamboyant fetishists have long passed. When you see most gay-parent families in their natural environment their bourgeois nature becomes apparent. In fact, the "gayness" of it fades into the background for most observers.

I'm not a big Burke fan myself, but that particular argument of his has some bite.

[clarice]

As I recall most of those committed homosexual pre-Christian relations were side by side with hetero ones designed to perpetuate families--Greek women for example were "wed" to men to breed for them while they romped off with other men.

[Charlie (Colorado)]

Hmm. New Yorker has a piece up that seems to apply.

No endorsement implied, I just started looking at it.

[matt]

Socrates was the ultimate rationalist, Charlie. It's what he did for a living. As to the Egyptians and Greeks, our knowledge is, believe it or not, quite limited. There are inferences but no direct evidence of some acceptance of homosexual relationships, mainly taken from a very few scenes on kraters, or wine drinking vessels, used in their own debaucheries. One thing the ancients could do well is get ripped and the sheep got nervous as well. Sort of goes with the whole out of control Dionysian/Bacchan ethos.

As to Roman custom, again, there is little documentation, but it did apparently exist among the upper classes in a very limited way. After all, debauchery and licentiousness were a part of the culture. Regardless, it was not common and generally accepted. What we have today is a Derridean deconstructionism and revisionism. Besides, the Persians were funky regardless. If I'm wrong, cite your sources.

[Danube of Thought]

"It's certainly less than clear that restricting the right of black and white people to marry is 'unambiguously forbidden' by the Constitution."

The language of the equal protection clause makes it pretty unambiguous to me. The reason that clause was not used to strike down Jim Crow laws and anti-miscegenation statutes was that the clause was for many years interpreted to apply only against the federal government, and not the states. Through the course of the 20th century the courts gradually began to hold that the due process clause of the fourteenth amendment did, indeed, bind the states, which ultimately led to such decisions as Brown v. Board of Education and Loving v. Virginia.

[Charlie (Colorado)]

Once upon a time in the real world children with families who did not stay together had little chance of making it.

Not long before that, the family that stayed together was rather larger than Mom, Dad, and siblings. Not that there wasn't a fair bit of abandonment. And, of course, sometimes one partner or the other just died, a kind of divorce legislation wasn't very effective at regulating.

As I recall most of those committed homosexual pre-Christian relations were side by side with hetero ones designed to perpetuate families--Greek women for example were "wed" to men to breed for them while they romped off with other men.

Yup. In fact, it was apparently considered a little suspicious for Classical Athenians to actually enjoy sex with their wives; it was just necessary for breeding. You were also failing in your duty to the Pentates and Genii in Rome of you didn't procreate, no matter who you were involved with.

So how about this: we make marriage restricted to fertile heterosexual couples, and make it like it was in some parts of France and Switzerland: you couldn't be formally married until you proved you were mutually fertile by a pregnancy.

Everyone else has to be joined in a civil union and if they want kids they have to adopt.

(Re bursitis, sorry to hear it; tried ice? Martinis are also good, I'm told.)

[Danube of Thought]

"So someone could be legally married in a way that wasn't legal under Colorado law. Still, as I recall, there was no question it was a legal and enforceable marriage."

That's by operation of the full faith and credit clause. As Clarice points out, there is an open question whether the clause would apply where the couple involved could not cure the prohibition in State B's law (say, Colorado's) by some mere ministerial act, such as observing a waiting time. That's why people used to go to Reno to get divorced, because the waiting time was shorter, and other states were bound to recognize them--the difference in waiting times was simply not material enough to prevent the clause from applying.

It might be very different if State A prohibited marriages of people under sixteen, but State B had no age limit. I simply don't know whether State A would be required to recognize the marriage of a twelve-year-old who married in State B and moved to State A.

[Danube of Thought]

"I used to date this 6 ft blonde amazon who could run a mile in a bit over 6 minutes and deadlifted 300 pounds. Should she be restricted from being in the Infantry when a 5'6" 130 lb male with glasses wouldn't?"

Yes, she should be unless there were many, many more like her, which there aren't. We may one day discover a talking gorilla who can shoot, but that doesn't mean it is sensible to try to assimilate him into an infantry battalion.

The 5'6" male with glasses might or might not be restricted, depending on his physical capabilities.

[Charlie (Colorado)]

Socrates was the ultimate rationalist, Charlie.

Yup. now look up "Socratic method."

As to the Egyptians and Greeks, our knowledge is, believe it or not, quite limited. There are inferences but no direct evidence of some acceptance of homosexual relationships,...

You have to dispose of a lot of counter-example on that, from Khnumhotep and Niankhkhnum on forward.

[Danube of Thought]

"What benefits accrue to society by recognizing marriages among heterosexuals?"

Innumerable benefits, principally those stemming from the fostering the establishment of family units. The easiest way to contemplate what those benefits are is to consider what we see as such units become increasingly less common.

[Jane]

Charlie,

The major cost of not allowing gay marriage is the loss of tax breaks - and that's the same cost I pay as a single person. I also have to contract for my beneficiaries, my health care proxy and all the other things I'm supposed to have a Spouse for. Adoption costs a filing fee, and your will is your will is your will. So if your friend is charging 10k to make all that stuff happen, then good for him I guess.

I know the bill to get your taxes done is undoubtedly higher, because at least in MA you file your state taxes as married and your federal taxes of single. Of course that can have benefits too if one person makes more money and can claim the deductions. And if your gay spouse dies you are not responsible for his or her student loans - but you are if you are a het.

I don't see anything wrong with contracting for what you want and I'm a proponent of gay marriage. The financial argument is a rational and compelling one, but as a single person it just makes me think I'm the only one around not getting an advantage here.

[Charlie (Colorado)]

Through the course of the 20th century the courts gradually began to hold that the due process clause of the fourteenth amendment did, indeed, bind the states, which ultimately led to such decisions as Brown v. Board of Education and Loving v. Virginia.

Right. So it was apparently not unambigous. It changed as the interpretation of the Constitution changed.

It might be very different if State A prohibited marriages of people under sixteen, but State B had no age limit. I simply don't know whether State A would be required to recognize the marriage of a twelve-year-old who married in State B and moved to State A.

Wouldn't the variation in laws about marriage of first cousins make for a good analogy?

Yes, she should be unless there were many, many more like her, which there aren't.

So the issue isn't her physical capability after all, but rather that she's unusually physically capable? So, then, since there aren't many people capable of running a mile under 4 minutes, Olympic sprinters shouldn't be allowed to join the infantry?

[clarice]

Tried ice for days now--tried aspirin and even zantac (which one doc claims is a great general anti-inflammatory). Haven't tried martinis but will now try sleep.
Smooches

It's hard enough to raise children these days, I can't see a single benefit to society to making it even harder and I worry that recognizing same sex marriages will shortly thereafter lead to the reduction or elimination of those few remaining financial benefits---with predictable results.

[Danube of Thought]

"So how about this: we make marriage restricted to fertile heterosexual couples, and make it like it was in some parts of France and Switzerland."

That's fine if you can persuade enough state legislators to enact laws incorporating such restrictions, but I don't much like your chances. Most states have limited marriages to unions between a man and a woman, and they have done so through the democratic process. One problem with restricting the right of marriage to those who are fertile is that the question of fertility is often unknown at the time of marriage, and most states have decided that they don't want to require experimentation before the marriage takes place.

[Charlie (Colorado)]

The major cost of not allowing gay marriage is the loss of tax breaks - and that's the same cost I pay as a single person.

Ah, okay, that's the cost on the other side than I was thinking.

The financial argument is a rational and compelling one, but as a single person it just makes me think I'm the only one around not getting an advantage here.

I can dig it.

Innumerable benefits, principally those stemming from the fostering the establishment of family units.

So family units can't be established in the absence of "traditional marriage"? The Mosuo, among others, would be pretty surprised.

[boris]

Actually my list wasn't intended to exclude cultures which practiced variations on the form. Just addressing the idea that marriage has been around longer than Moses.

The variations may come and go but the core meaning seems consistent. The core meaning does not exclude variations, it just does not include them.

If some authority is going to establish a new absolute meaning for everybody, we can debate ... should that be based on the common core meaning or include all possible variations? The only variation to be allowed (at this time) already has a seperate form.

[Charlie (Colorado)]

Most states have limited marriages to unions between a man and a woman, and they have done so through the democratic process.

Which wraps us back around. Lots of states restricted marriage to be among white heteroseual couples and black heterosexual couples, but not mixed, and did so through the democratic process.

I just looked up the 14th Amendment: "Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

I don't see anything there that makes it apply in a different way to marriage. If it "unambiguously" requires states to permit interracial marriage, why doesn't it unambiguously requires states to permit same-sex marriage?

[Danube of Thought]

"So it was apparently not unambigous." Nothing ambiguous about it at all. Judges have plenty of ways of avoiding the constitution, and they've been doing it for over 200 years. Try to square the Dred Scott decision with the constitution--you can't, the written words of the document simply won't bear the construction place upon it by the Court in that instance (and others).

"Wouldn't the variation in laws about marriage of first cousins make for a good analogy?"

Analogy to what? I don't know how that one would come out under the clause.

"So the issue isn't her physical capability after all." That's correct. The issue is the physical capability of the huge majority of women.

"So, then, since there aren't many people capable of running a mile under 4 minutes, Olympic sprinters shouldn't be allowed to join the infantry?"

Of course they should, if they are male and can successfully complete the physical tests. How would their ability to run a four-minute mile disqualify them?

[Charlie (Colorado)]

Actually my list wasn't intended to exclude cultures which practiced variations on the form. Just addressing the idea that marriage has been around longer than Moses.

Oh, you bet. The the notion of marriage you're defending, though, is much more restrictive, and I really don't know of anywhere that doesn't derive its traditions from Mosaic law that uses the restrictions you're proposing.

For that matter, the whole notion of having a secular marriage at all isn't real old: the Marriage Act that defined it in England did so in the mid-18th century.

The variations may come and go but the core meaning seems consistent. The core meaning does not exclude variations, it just does not include them.

But this is begging the question. The "core meaning" here is what you're defining as "marriage" even though it's not universal at all. And how do we know it's the "core meaning"? Because it's what you define as a "marriage".

[Danube of Thought]

"So family units can't be established in the absence of 'traditional marriage'?"

That's correct, and I don't see the need to put the derisive quotes around the phrase. I imagine there is a great deal that would surprise the Mosuo.