And A Subsequent Administration Can Decline To Defend ObamaCare

Orin Kerr on Obama's decision not to defend the Defense of Marriage Act:

...If you look at AG Holder’s reasons for why DOJ won’t defend DOMA, it is premised on DOJ’s adoption of a contested theory of the constitutionality of laws regulating gay rights. The letter says that “the President and [the Attorney General] have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law then, from that perspective, there is no reasonable defense of DOMA.” This theory is not compelled by caselaw. Rather, it’s a possible result, one that is popular in some circles and not in others but that courts have not weighed in on much yet.

By taking that position, the Obama Administration has moved the goalposts of the usual role of the Executive branch in defending statutes. Instead of requiring DOJ to defend the constitutionality of all federal statutes if it has a reasonable basis to do so, the new approach invests within DOJ a power to conduct an independent constitutional review of the issues, to decide the main issues in the case — in this case, the degree of scrutiny for gay rights issues — and then, upon deciding the main issue, to decide if there is a reasonable basis for arguing the other side. If you take that view, the Executive Branch essentially has the power to decide what legislation it will defend based on whatever views of the Constitution are popular or associated with that Administration. It changes the role of the Executive branch in defending litigation from the traditional dutiful servant of Congress to major institutional player with a great deal of discretion.

If that approach becomes widely adopted, then it would seem to bring a considerable power shift to the Executive Branch. Here’s what I fear will happen. If Congress passes legislation on a largely party-line vote, the losing side just has to fashion some constitutional theories for why the legislation is unconstitutional and then wait for its side to win the Presidency. As soon as its side wins the Presidency, activists on its side can file constitutional challenges based on the theories; the Executive branch can adopt the theories and conclude that, based on the theories, the legislation is unconstitutional; and then the challenges to the legislation will go undefended.

Presumably, under this logic President Palin won't defend ObamaCare in court.  Of course, President Palin won't veto a repeal of ObamaCare, either [if a repeal made it past a Democratic filibuster in the Senate].

As to the notion that Obama was going to de-politicize the Department of Justice, well, I presume no one took that seriously anyway.

SOME HISTORY: Jack Balkin thinks this gives liberal courts good political cover and provides some history:

Why does a change in the official position of the Administration matter to federal judges? The answer is that when the President and the Justice Department change their minds publicly and take a new constitutional position, it gives federal courts cover to say that their decisions are consistent with the views of at least one of the national political branches. Agreeing with the President appears less countermajoritarian, even if other parts of the federal government (and the various states) disagree.

Thus, it was only after the Truman Administration asked the Supreme Court to overturn Plessy v. Ferguson in Sweatt v. Painter in 1950, and again in the Brown litigation in 1952, and after the Eisenhower Administration's Justice Department concurred with the Truman Administration when it came into office, that the Supreme Court finally felt comfortable overturning Plessy v. Ferguson in Brown v. Board of Education in 1954. After the Bush Administration took the official position that the Second Amendment protects an individual right to bear arms in self defense (around 2001), this provided political cover for the Justices to reach the same conclusion in 2008 in District of Columbia v. Heller. Note that the President's explicit and public support for a constitutional position does not have to be a reason explicitly stated in judicial opinions, but it can be an important factor nonetheless.

I would feel better if his historic examples involved a Federal law, not a prior court decision or a local law.  [AKS AND RECEIVE - America Blog dug up some nolo contendre examples in order to bash the original Obama decision to defend these cases.  This 2005 case about the advocacy of marijuana reform is good:

WASHINGTON - The U.S. Department of Justice has notified Congress that it will not defend a law prohibiting the display of marijuana policy reform ads in public transit systems. The controversial statute was recently ruled unconstitutional by a federal district court. The Solicitor General Paul Clement stated in a letter to Congress that, "the government does not have a viable argument to advance in the statute's defense and will not appeal the district court's decision."

...

As the Wall Street Journal reported today, "Mr. Clement's opinion also could serve as a warning to Congress that it can't assume the Justice Department will support the controversial riders that lawmakers have been adding to funding bills if those riders are challenged in court." The Wall Street Journal added, "Two past solicitors general, Charles Fried and Seth Waxman, said it is rare for a solicitor general to refuse to defend a statute passed by Congress" and that "Mr. Fried, who served under President Reagan, recalled making such a decision only twice."

The law at issue in ACLU et al., v. Norman Y. Mineta is Section 177 of the FY2004 federal spending bill, also known as the 'Istook Amendment,' which threatens to cut off more than $3 billion in federal funding from local transit authorities nationwide that accept advertisements critical of current marijuana laws. Rep. Ernest Istook (R-OK) introduced this amendment to the spending bill last year and Congress re-included the same law in this year's federal budget.

A court ruled that to be a free speech violation and the DoJ couldn't figure out how it wasn't.  One might note that the politics ran a bit backwards relative to this DOMA example, since it was a Republican administration dumping a dubious (but potentially pleasing to part of the base) amendment foisted on them by a Republican Congress.

ERRATA: My official editorial position is that the judicial cramdown of gay marriage is highly probable.  I would prefer a legislative process but I also believe that the cramdown won't be divisive forever, as Roe v. Wade has been - experience will tell whether gay marriage strengthens, weakens or has no effect on marriage; experience with abortion hasn't, and won't, tell us whether life begins at conception.

Comments

[Neo]

It's really sad that Pres..ent Obama has lead us here

[Buford Gooch]

Change! Hope! And Stuff!

[Jane]

Once again Obama proves he is clueless about the constitution and how government works. He just makes it up as he goes along.

And no one says a word. (except us)

[Rob Crawford]

He's not clueless, Jane. He just disagrees.

[Captain Hate]

The passage of the defense of marriage act wasn't a partisan vote nor was it even a narrow margin so Jugears McFly and his DOJ imbeciles should give some underlying reason why they are so much more in tune with the Constitution compared to Congress and Slick in 1996. Maybe Steadman Shabbaz Holder can provide any opinions he provided for Reno at the time, assuming he wasn't only working on things screwing over Cuban refugees or giving Clenis cover for scam pardons.

[clarice]

Orin knows this is wrong and why and so do we, but for a public constantly propagandized to believe outcome, not process is the thing in law, this will be heralded by those who want gay marriage and opposed by those who don't with no understanding of why this undercuts order.

[Ignatz]

--I would prefer a legislative process but I also believe that the cramdown won't be divisive forever, as Roe v. Wade has been - experience will tell whether gay marriage strengthens, weakens or has no effect on marriage;--

Implicit in that argument seems to be that if it does weaken marriage it will be repealed and that is how the issue won't be divisive?
Much more likely is, it will further weaken marriage, as it has done in every other country it's been tried in but since it will be viewed as a right it will not be repealed and whether or not it's divisive it will be destructive. But hey, with a 70% illegitimacy rate among blacks already why not just destroy our culture completely?

[Rick Ballard]

It's a fine measure of the contempt he holds for the black population which overwhelmingly opposes gay marriage. I suppose they should count themselves lucky though - I didn't see any language by him in stronger support of the slaughter of black babies.

[centralcal]

Gawd, I am so utterly sick of this boy-child pretending to be a celebrity, all the while holding an unearned title of C-I-C.

I hope he implodes in a glorious eruption! The sooner the better for our country.

[Danube of Thought]

"experience will tell whether gay marriage strengthens, weakens or has no effect on marriage..."

Well, sure. But if it comes about by judicial cramdown it's with us forever no matter what the effects turn out to be. There's no repeal of a judicial decision.

[Janet]

Why should I bother voting? The fed. government doesn't enforce our immigration laws either and now DOMA. If they can ignore laws then why can't we all ignore laws?
That Planned Parenthood video showed that states ignore the laws too. What is the use if conservatives must work within the law, but leftists get tyranny?

[Jane]

He's clueless Rob, and he is usurping power he doesn't have.

When are you going to Italy? Caro and I are off to France in the end of April and I'm a bit concerned myself.

[Captain Hate]

I would prefer a legislative process but I also believe that the cramdown won't be divisive forever

Based on what? You don't think the lawsuits against priests, ministers and rabbis (but not imams) for refusing to marry two homos won't be shortly forthcoming? You think this will be a benign end in itself and the lefties won't be pushing the envelope for the next offensive against western civilization? Tammy Bruce has characterized this whole scam as the left using the homos to pursue their own ends.

Maybe you don't remember, but I sure as hell do, how the homos wanted no part of the institution of marriage and considered it some bourgeois convention that was for us "breeders". My reaction was "Knock yourself out and leave me the hell alone" which was widely echoed by most everybody else. I don't know what changed their minds but I'm not sympathetic to their whining about violating their rights. At all.

[Jim Rhoads a/k/a vjnjagvet]

Could an Amicus supporting DOMA apply for an extraordinary writ under FRAP 21(c) seeking leave to defend the statute in the absence/change of position of the AG?

[matt]

the moon is quoted on Drudge as saying that "the nations must speak with one voice". I just can't get over his duplicity and arrogance.

As if that would ever happen.Just look at China/Russia and Iran or North Korea. He has no concept of the forces at work.

[matt]

that would be "moron"

[PD]

It's a fine measure of the contempt he holds for the black population which overwhelmingly opposes gay marriage.

Hey, look on the bright side. This is one time he's not courting the Jihadists.

[MarkJ]

"There's no repeal of a judicial decision."

Hmmm, in this country anyway, I'd say there have been at least three ways to effectively repeal rotten judicial decisions.

1. Another judicial decision.

2. Additional legislation by Congress.

3. Civil war.

[PD]

Some guy in the coffee shop was asking his buddy whether he'd heard about Walker getting punked. Then he told him a radio host had called Walker pretending to be one of the Koch bros and, "within 20 minutes he had him totally busted!"

I looked over and said, "Everything Walker said was completely benign."

He looked at me like I'd just landed on a spaceship. "You don't think his popularity will suffer for it?"

"No."

I guess he thought that phone call was the end of Walker's political career, and that for anyone to think otherwise was unthinkable.

[Jane]

I'm not sure I see the impact of not prosecuting violations of DOMA. I guess if a gay coupled married in MA goes to Texas looking for full faith and credit, the US government won't side with Texas - which leaves us where?

[clarice]

Interesting thought, Jim. It's obvious that in those cases the govt is not representing the defense.

[PD]

A Wednesday night without Human Target is like a day without sunshine.

[Chubby]

PD

Your coffee shop sounds like quite an interesting place. Does it have a customer named Cliff who is a mailman?

[Janet]

abortion hasn't, and won't tell, tells us whether life begins at conception.

Life begins at conception. Pro abort people just believe you can kill that life if it is in the mother's womb. But it is a new life at conception with different DNA from the mother.

...and there is no such thing as gay marriage. Marriage is the union of a man & a woman. What other words can we redefine? I want to be a minor if I commit a crime, & I want to be an African-American if I apply to college. I want to be disabled when I park my car.
We destroy the traditional family & we destroy our nation....heck, we're already proving that.

[PD]

No, but when I had an office over by West Towne, my mailman was named Cliff. Nearing retirement age, glasses.

The incident at the coffee shop was unusual for me, I usually mind my own business. This guy was loud, though, so he had it coming. :-)

[Porchlight]

abortion hasn't, and won't tell, tells us whether life begins at conception.

The whole point of abortion is to prevent a baby being born - to prevent a life being lived. 53 million of those not-lived lives since Roe tells us rather a lot.

[Chubby]

:)

[Rob Crawford]

PD -- the left will simultaneously believe that phone call "proves" the Kochs own Walker and that Walker was an idiot for believing it was one of them. The most important issue for them is the maintenance of their false sense of superiority.

[Ann]

I love you Janet. :)

[narciso]

Orwell must tapping from the 'Great Beyond'
I didn't intend it as a guidebook,

[Janet]

Love you too Ann!
**waving from Virginia**

[narciso]

Plessy vs. Ferguson, was a scar on this nation, that cleaves it to this day, to make
DOMA any kind of parallel is nothing short of obscene. But what can one expect with the 'Bendini, Lambert & Locke' of the terrorist bar, whose partner rendered state property back to Cuba, and gave March Rich, a get out of jail free card. Levin, was on fire over this tonight, you could almost ear the smoke.

In other more salutory news, in the LUN

[squaredance]

This is rule by decree. It is lawlessness. One wonders if we can ever recover form this. If we do, as a consequence the Left will have to be completely removed from power.

There is not much left of our tatter republic.

[JM Hanes]

Ignatz:

"Much more likely is, it will further weaken marriage, as it has done in every other country it's been tried in."

How so?

[daddy]

Shades of ">http://www.mediabistro.com/fishbowlla/files/original/poltergeist.gif"> Poltergeist, how's a Lefty Judge supposed to rule on this one?

According to the LA Times, a Native American group is suing to stop 6 Obama pushed and funded Solar Power projects in California: ">http://www.latimes.com/news/local/la-me-solar-suit-20110224,0,539145.story"> Lawsuit alleges solar projects would harm sacred Native American sites.

The group claims that putting up the Solar panels next to the sacred burial ground would harm the Indian graveyard and glyphs and ancestral spirits and what not.

"The lawsuit...accuses the Bureau of Land Management of fast-tracking the solar projects without the required environmental review and without consulting with Native American tribes that oversee the preservation of sites with religious and cultural significance. The federal agency disregarded its formal agreement to consult with La Cuna to protect sacred sites that may be affected by projects on bureau-controlled lands."

"This is just a boondoggle" say's the group's lead attorney ..."This isn't about solving an environmental problem or an economic problem. It's corporate welfare."

If the Commerce Clause cover's "Mental Activity" I suspect some other umbra of it it covers "Spiritual Activity" as well, but IANAL.

[boris]

"How so?"

IIRC in two states with both traditional marriage and domestic partnership, California and Connecticut, judges acted to redefine marriage citing the difference in social status and respect which the state could not remedy, award, or transfer to domestic partnership.

An answer to your question would require (1) some agreement on the nature of the social status and respect (unlikely) followed by (2) reasonable analysis on how redefining marriage affects that status.

[Captain Hate]

How so?

See Orwell and what happens when you start screwing around with the definitions of words. Or maybe the burden of proof should be on you to explain why one of your pet causes is such a great thing.

[jag]

Maybe the broader society will come to accept homosexual marriage but the facts in Massachusetts indicate gays have little enthusiasm for the institution.

"From 2007 to 2009, the number of gay marriages in Massachusetts jumped by 84 percent, from 1,524 to 2,814. A hefty majority, 1,668, involved out-of-state residents, according to state records."

Boston Globe 2/24/2011

So there's been about 200 homosexual marriages a year among Massachusetts gays since the 2003 ruling. The self reported population of gay couples number 20,000. At best, 1/2 of one percent of gay couples bother to marry in MA.

One would expect that, from a group that has raised the issue to a fever pitch of moral imperative, would then avail themselves of the opportunity to exercise this critical "civil right" a bit beyond one percent of their population.

This isn't about marriage. Its about satisfying the desire for homosexuals to be regarded, culturally, as perfectly ordinary.

[Jane (sit on the couch or save your country)]

Janet,

Does the bible use the word "marriage"?

Jag,

How many straight couples marry percentage-wise? And what makes you a "couple?

[Danube of Thought]

"There's no repeal of a judicial decision."

If it's a Supreme Court decision, the only way it can be "repealed" is for the Court to reverse itself, which has happened fewer than 25 times in over 200 years.

If it's a decision based on the constitution, legislation can't touch it.

The other options are a constitutional amendment (good luck) and Civil War (ditto).

[boris]

When you have one faction of the tea party coalition telling the other "cool it with the social issues" ... the answer to the question "why now?" should suggest at least one obvious answer.

[boris]

the answer to

[clarice]

What a great report, daddy!

[Jane (sit on the couch or save your country)]

Clarice you got an Instalaunche

[Jack is Back!]

boris,

Timing is everything in politics. Wisconisin is a drum roll for the efforts of the T-Party as far as the elective results of November. The Won and his political office have a two pronged strategy for 2012 - support the unions and let them get bloody in the streets and find a way to split the T-Party.

One way to enact a schism with the T-Party is to take a page out of the Mitch Daniels playbook - seperate social/cultural issues from the economic/fiscal ones. Just decide to do something like bringing DoMA back to the forefront and get it on the T-Party radar hopefully scattering out the other more important issues like Wisconsin, Indiana, Ohio and the debt, deficit and growth of government in DC.

Will it work? Who knows but its obvious to me that all of this is very Axelrodian in concept and Plouffey in action.

[narciso]

Why is it, JiB, it's assumed we can only do one thing at a time, in 2002-2004 period, they
were undermining the war, preventing subprime
regulation, pushing campaign finance, and gay marriage, all at once,

[Ignatz]

--How so?--

Kinda busy today, JM, so your best bet is to google gay marriage and National Review. A few years back Stanley Kurtz did a thorough series of articles researching the effects of gay marriage on heterosexual marriage, where it had been tried in Western Europe. The results were not encouraging.

[Vercingetorix]

"Janet,

Does the bible use the word "marriage"?"

Yes, at least 21 times. Google, your friend, etc.

[Ignatz]

--Janet,

Does the bible use the word "marriage"?--

Not only does the bible use the word marriage, Jane, the church itself is described as the "bride" of Christ and there will be a "marriage supper of the Lamb" whereby all believers, past and present, are united as one in Christ.
Perhaps that will help partly explain Christian objections to any further degradation of marriage beyond what man already does to it.

[Appalled]

Ignatz:

I think I prefer gays actually indulging in the institution of marriage to the rather rampant tendency of all sorts of folks to have kids withput bothering to get married.

That said, establishment of gay marriage is not the sort of societal change that judges should impose. Society changes and government responds. Government is not in the business of changing society.

[Tom Hazlewood]

While Gray Davis was Gov. of Calif. he allowed a referendum that had been approved by the people there to lose against a court challenge when he simply did not put up a defense.

Tried and true tactics.....

[boris]

"I prefer gays actually indulging in the institution of marriage ..."

Don't confuse what it is with what it's called. We could all participate in what is domestic partnership and call it marriage but we can not all participate in what is marriage.

[Joe G.]

I expect the judicial imposition of same-sex "marriage" to absolutely be as problematic or controversial as Roe. It will become the camel's nose peeking under the tents of adoption, family law, sex education, church practices, etc.

[Ignatz]

--Ignatz:

I think I prefer gays actually indulging in the institution of marriage to the rather rampant tendency of all sorts of folks to have kids withput bothering to get married.--

Appalled,
Unfortunately as the Stanley Kurtz research I referenced suggests, gay marriage results in more heterosexual couples having children but not marrying resulting in more screwed up kids and related social pathologies.
And the number of gays who will actually marry is quite low so the large majority will continue to "indulge" in those things they already do.
So we get the worst of all possible worlds; a left wing political statement disguised as some vague civil right issue that weakens society and traditional marriage even more but has little effect in constraining reckless gay promiscuity or giving them any type of societal anchor, which marriage does for heterosexual men, when it is properly supported and encouraged by the society it is made to serve.

[Jeff]

tactical mistake by Obama ... with DADT gone and DOMA about to go what reason does the gay community have to vote for Obama in 2012 ?

no, they may not vote GOP but they just won't vote with these issues "decided" ...

thats the danger with trying to herb half a dozen different special interest groups ... tough to keep everyone in line come election time ...

[Jim Ryan]

Ignatz, I think Kurtz's research has to deal with an objection. The objection is that moral decay in Europe is a common cause of the (a.) institution of gay marriage there and (b.) the breakdown of the heterosexual marriage and the family there. If I recall correctly, he only cites a correlation between the rise of (a.) and (b.) without considering that perhaps moral decay caused both and that (a.) did not cause (b.). If this possibility could not be refuted, then one might contend against Kurtz that allowing gay marriage in a society would have no ill effects on that society. Such a rebuttal to Kurtz would contend that moral decay can cause a society to institute gay marriage but that this institution has no ill effects and may indeed be morally acceptable. A proponent of gay marriage may even argue ironically that the institution is morally good even though at this point in history only morally lax societies will embrace it.

I really have no idea what is correct, myself. Gay marriage may be terribly pernicious, or not, for all I know. But I did notice this issue when I read the Kurtz articles, and it is obvious that a society in moral decay may both tend to embrace gay marriage and allow its families to erode.

[boris]

"he only cites a correlation ..."

A correlation consistant with a natural expectation that men in particular are less inclined toward domestic partnership than traditional marriage.

[jag]

Jane,

# Percentage of population that is married: 59%, down from 62% in 1990, 72% in 1970.
# Percentage of population that has never married: 24%.

http://www.meninmarriage.com/article05.htm

So about 75% of heterosexuals marry. What makes up the 20,000 gay couples? Those who identified themselves to a census as such. One would presume that is the minimum number, no?

So, 50-75% married heterosexuals. 1/2 of 1 percent homosexual couples in Massachusetts. I'm only pointing that homosexuals don't appear all that game to join the club. The urgency to be legally capable to see one's partner in the hospital must not be all that great in Massachusetts.

I don't assume there is a "right" percentage but sometimes a number so far removed from what was described as a perfectly horrific condition (the absence of marriage ability for homosexuals) does raise questions. No?

Its been six years and, considering all the pent up demand, you'd expect a veritable flood of marriages given the hype surrounding this critical "need". Either there is no substantive demand for homosexual marriage or the age old reports of homosexuals in society of "10%" have been ludicrous lies. Maybe both, come to think of it.

[Ignatz]

--But I did notice this issue when I read the Kurtz articles, and it is obvious that a society in moral decay may both tend to embrace gay marriage and allow its families to erode.--

Jim, the issue was raised by his critics. His response which I think was pretty well founded was that the data indicate the acceptance of gay marriage does indeed indicate a society in moral decay, which is somewhat his point, but also that it tends to accelerate and exacerbate whatever decay exists.
It may be making a bad situation worse but that's not a refutation of his point; it's a confirmation of it. Why aren't we pursuing those things which we know improve family cohesion? Because a contingent of our society does not want to improve our society; they wish to remake it in their own image. That a significant portion of putative conservatives so breezily sign on to this portion of that agenda is pretty disturbing.

[Jane (sit on the couch or save your country)]

Perhaps that will help partly explain Christian objections to any further degradation of marriage beyond what man already does to it.

Ignatz,

I really did ask the question because I wanted to know the answer. And I just got off the air after a gigantic battle with Dick over this issue. He assumed I would be thrilled with the president's change of mind. He didn't expect me to be bullshit at his attempt to declare something unconstitutional and tell his justice department to not uphold the law. I went more ballistic than I thought I would.

Jag,

I really never understood why gays wanted to get married, except for the ones with kids. Then again I have a hard time understanding why anyone gets married if they aren't having kids.

[MarkJ]

"The other options are a constitutional amendment (good luck) and Civil War (ditto)."

If, in 1860, you'd informed the average tavern-yokel that by 1870 a) 600k Northern and Southern soldiers and civilians would be dead after a titanic civil war, b) 4m mostly illiterate Negro slaves would be free and legally the equals of whites, c) Negro males of age would be granted the voting franchise, d) black legislators be seated in state legislatures and even in Congress itself, and e) a respected Shakespearean actor would assassinate the President in public.....

.....they'd have laughed and then hurled you bodily through the swinging doors into the dung-filled street.

Never say "never".

[Janet]

Great posts this whole thread Ignatz.

[Rob Crawford]

tactical mistake by Obama ... with DADT gone and DOMA about to go what reason does the gay community have to vote for Obama in 2012 ?

You really think anything will happen?

The groups pushing against the DOMA in court will withdraw their cases "to see how the move in Congress towards a repeal plays out".

Then there will be a long debate in Congress, with Democrats resorting to their usual rhetoric: Nazis, lynching, yadda yadda.

When it comes to a vote, enough "moderate" Democrats in close or swing districts will vote against the repeal to block it.

Result: lots of sturm und drang, no change, and lots of footage of Democrats "standing up for gay rights".

[Ignatz]

--Ignatz,

I really did ask the question because I wanted to know the answer.--

I didn't think anything else, Jane, and tried to answer as best I could.

[Jane]

YOu did fine Iggy. I just wanted you to know I wasn't trying to be antagonistic. We both have strong feelings on the subject.

FTR Obama's actions - subverting the legislative process pissed me off as much as I can recall. I don't think it helps the gays or the rest of us for that matter.

[JM Hanes]

Ignatz:

I think this article by Stanley Kurtz, which garnered a lot of attention, may be the one you had in mind? Perhaps he has made his case more convincingly elsewhere.

He spends the first third or more of this piece examining in considerable detail all the factors -- except gay marriage -- which have contributed to the increase in cohabitation and out of wedlock births in Scandanavia. After establishing that Europe in tres partes divisa est with regard to such numbers (descending roughly from Nordic to Middle to Southern Europe) he makes a one paragraph correlative statement that, "These three groupings closely track the movement for gay marriage." He spends most of the rest of his article discussing Norway, which he, himself, identified as a social outlier, where he only really establishes that the issue of gay marriage tore the Lutheran Church asunder, with unfortunate cultural results.

Shortly after that, at National Review, he boiled his own argument down to an assertion that if gay marriage is an effect of marital decline, then it must also be a cause!

I believe I have established that marriage in Scandinavia is dying. No one has disputed this. Instead it is objected that gay marriage is not a cause of this demise, but only an effect. I would like someone to explain how gay marriage could be only an effect of the decline of marriage, without also being a reinforcing cause. How can a change that becomes imaginable only after marriage has been separated from parenthood fail to lock in and reinforce that very separation?

I would really like to know if there is persuasive evidence for the contention that gay marriage has a destructive effect on heterosexual marriage and families, but I'm afraid Kurtz's "proofs" don't even amount to serious correlation.

For what it's worth, here are a couple of the first counterarguments which turned up in my Google search for Kurtz, both of which work from stats which he did not provide.

At Slate: The End of Marriage in Scandinavia?.

At HuffPo: Stanley Kurtz Tries to Tie Gay Marriage to Divorce, Accidentally Proves Opposite.

[narciso]

JM, seriously, Barrett Brown, we know his provenance, and it is not to be trusted, th fact that there are no hyperlinks to the data in question, kind of validate the point.

[Charlie (Colorado)]

See Orwell and what happens when you start screwing around with the definitions of words. Or maybe the burden of proof should be on you to explain why one of your pet causes is such a great thing.

Yeah, yeah, prove gay marriage doesn't harm traditional marriage.

That trick'll work.

Go look up the impossibility of proving a negative, there's a good lad.

[Charlie (Colorado)]

Not only does the bible use the word marriage, Jane, the church itself is described as the "bride" of Christ and there will be a "marriage supper of the Lamb" whereby all believers, past and present, are united as one in Christ.

So men marrying men is okay after all.

[Charlie (Colorado)]

Don't confuse what it is with what it's called. We could all participate in what is domestic partnership and call it marriage but we can not all participate in what is marriage.

So what's your plan, Boris? If two gays form a domestic partnership, live together, wear rings, and say they're "married" how do you propose to stop them.

Personally, I think the answer is to have domestic partnerships for couples and let them call it whatever the hell they want.

[Charlie (Colorado)]

The other issue with Stan Kurtz's research is that he basically ignores all the cultures that have other forms of marriage, or no marriage at all. The effect is to emphasize places that are having social upheaval in general, but not count places where what we consider unusual marriage is common and well adapted to the culture.

[clarice]

I'm tired and heading off to bed. Should a fellow named Terry from Canada show up, he's a friend from high school. Be nice to him or else.

[Captain Hate]

Yeah, yeah, prove gay marriage doesn't harm traditional marriage.

That trick'll work.

Go look up the impossibility of proving a negative, there's a good lad.

If you're going to try to ridicule me, at least paraphrase accurately. Otherwise it seems like you're trying to pick a fight for no reason other than being an arrogant ass.

[boris]

"really like to know if there is persuasive evidence for the contention that gay marriage has a destructive effect on heterosexual marriage and families"

IIRC you don't consider rather compelling evidence that children fare better with both biological parents to be at all persuasive. With that track record why would enyone expect persuasion to occur with an even more difficult and controversial proposition?

The argument might be that the status quo is unfair to gay couples so the burden of proof should be on defenders of traditional marriage. The part I consider false is the "unfair to gay couples". As I wrote earlier ... all can participate in what is domestic partnership and call it marriage but not all can participate in what is marriage. Nobody can give gay couples what traditional couples have, and taking away whatever special status traditionals enjoy is a shabby imitation of "fairness".

[wholesale louis vuitton handbag]

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[JM Hanes]

boris:

Your recall has always been notably selective, which has nothing to do, however, with locating evidence for the affirmative assertion that gay marriage has damaged traditional marriage in every country where it has been tried. If that info is out there, I think it would be worth looking at. YMMV.

[Janet]

This isn't about marriage. Its about satisfying the desire for homosexuals to be regarded, culturally, as perfectly ordinary.

I agree with this point by Jag.

[boris]

"evidence for the affirmative assertion that gay marriage has damaged traditional marriage in every country where it has been tried"

I'd say damage is the wrong standard to apply to an institution where it's "well being" is based on interest. If loss of interest is considered an undesirable trend it's unlikely much can be determined beyond correlation, especially when dealing with something as instincive as mating habits.

Lola looks like a hot chica but most young men lose interest when they find out she used to be a boy. Apparently the "real thing" is a significant factor for attracting interest (YMMV).

In plain sight is the history that opposite sex couples who could choose between traditional marriage and domestic partnership overwhelmingly chose traditional. Again, apparently the "real thing" is a significant factor for attracting interest.

Bases on what they do, rather than what they can be taught to say, they do not see choosing traditional marriage over domestic partnership as the moral equivalent of joining a whites only country club.

[boris]

* Based *

[Jane (sit on the couch or save your country)]

This isn't about marriage. Its about satisfying the desire for homosexuals to be regarded, culturally, as perfectly ordinary.

I agree with this point by Jag.

Lots of them are.

[MayBee]

Its about satisfying the desire for homosexuals to be regarded, culturally, as perfectly ordinary.

I'm already there.

I don't know. I have too many friends and acquaintances who are long term couples with kids and homes and pets and Saturday sports-- I just can't see them as anything but ordinary and even exemplary.

[boris]

And if they do not have the same status and respect a traditionally married couple get does that justify redefining marriage to mean domestic partnership so that no couple gets more than their fair share?

[Captain Hate]

This is using the anecdotal to define the universe. I have homo neighbors that are infinitely preferable to many hetero neighbors but that doesn't define normality for a group with a significantly higher incidence of suicide than heteros. You can treat individuals with deserved respect without losing sight that their lifestyle isn't ordinary.

[Ignatz]

--I think this article by Stanley Kurtz, which garnered a lot of attention, may be the one you had in mind?--

JM,
He wrote a whole series of articles, and like all social science it is not really science, but the overall conclusion seemed not only intuitive but fairly well supported.
He wrote responses to several critics and eventually included considerable discussion of other Western European countries like Denmark and the Netherlands I believe. He was obviously limited to those countries which have actually instituted gay marriage.
I find the casual description of the "tearing asunder" of the dominant church of the country with unfortunate cultural consequences a little problematic, considering this issue, like abortion, has precisely those type of broad ranging destructive cultural effects which emanate from their immediate focus. If gay marriage had little measurable effect directly on heterosexual marriage but otherwise tore a countries culture asunder would that be an acceptable outcome?
The moral authority and structure of a society is an immensely complex and intertwined thing and is built upon thousands of years of history which is precisely why conservatives advocate so strongly against rash attempts to unravel its threads; the whole garment comes apart it enough of them are pulled, which is also precisiely why leftists pull as many of them as possible.
As a BTW, Maggie Gallagher has written quite persuasively on the philosophical aspects of gay marriage as well as the more concrete effects it will likely have.

--The other issue with Stan Kurtz's research is that he basically ignores all the cultures that have other forms of marriage, or no marriage at all.--

And that is incorrect? He was demonstrating that gay marriage transforms, in a bad way, our culture and traditional marriage by examining those cultures most like our own that have tried it, primarily because a great deal of our culture derives from theirs.
If he were trying to prove that our culture can be transformed into something completely different and/or foreign then he might have looked at them, but I take it he, and a rather large number of non revolutionary leftists are trying to prevent precisely that.

--So men marrying men is okay after all.--

Christianity uses the familial relationships as a metaphor repeatedly.
If you believe that Jesus Christ was merely a man and that millions of men and women together as the Christian church constitute another man then you are welcome to any stupid conclusion you wish.

[glasater]

Beautifully said Ignatz.

I remember reading a time back that the churches in Europe are kept neat and tidy by the state but few attend worship.

[Chubby]

Oh happy day!

Jailed Christian convert is freed in Afghanistan

KABUL, Afghanistan -- An Afghan man who was jailed for nine months for converting to Christianity has been released after an intense campaign by international diplomatic missions and Christian activists, an official said Friday.

Sayed Mussa, a 46-year-old father of six, left a Kabul jail earlier this week and was taken to see Afghan prosecutors, who did not have enough evidence to charge him, said Gen. Abdul Qayum Safi, director of the detention center.

Source LUN Washington Post