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Ruth Bader Ginsburg: Americans Are Ready For Nationwide Same-Sex Marriage

ruth-bader-ginsburg-civvies

In what many are taking as the dropping of a pretty big hint about the mood of her fellow Justices when it comes to the same-sex marriage, Supreme Court Justice Ruth Bader Ginsburg told Bloomberg News that she believed that the American public would largely accept the legalization of same-sex marriage if the Court were to rule that way in June:

Americans are prepared to accept a U.S. Supreme Court ruling legalizing same-sex marriage, Justice Ruth Bader Ginsburg said, pointing to what she described as a sweeping change in attitudes toward gays.

In an interview Wednesday in the court’s oak-paneled east conference room, Ginsburg also said President Barack Obama’s health-care law, which is under attack in a case before the Supreme Court next month, will be a central part of his legacy.

The 81-year-old justice discussed the public’s increasing acceptance of gays against the backdrop of resistance by Alabama officials to a federal court order that took effect Monday and made it the 37th gay-marriage state. With the high court set to rule on the issue by June, she said it “would not take a large adjustment” for Americans should the justices say that gay marriage is a constitutional right.

“The change in people’s attitudes on that issue has been enormous,” Ginsburg said. “In recent years, people have said, ‘This is the way I am.’ And others looked around, and we discovered it’s our next-door neighbor — we’re very fond of them. Or it’s our child’s best friend, or even our child. I think that as more and more people came out and said that ‘this is who I am,’ the rest of us recognized that they are one of us.”

The number of gay-marriage states has soared in recent years, largely because of court rulings. Only 12 states permitted such unions in June 2013, when the Supreme Court threw out part of a law that denied federal benefits to legally married same-sex couples. The majority’s reasoning in that case prompted lower courts to strike down bans on gay marriage.

As Ben Brody notes, Ginsburg is largely correct that, at least on a national basis, Americans as a whole have become far more accepting of same-sex marriage than they used to be:

“The change in people’s attitudes on that issue has been enormous,” Ginsburg said, and indeed it has. According to Gallup, as of May 2014, 55 percent of Americans believe marriages between same-sex couples should be recognized by law in the same manner as traditional marriages (the most recent data available). Among those age 18 to 29, support for recognizing gay marriages reached 78 percent last year.

That’s a striking change from the era when Ginsburg, 81, ascended to the court in 1993. When the Defense of Marriage Act became law in 1996, allowing states to deny recognition to same-sex marriages performed in other states, Gallup asked a similar question. Just 27 percent of Americans said marriages between gays and lesbians should be valid. Ten years later, support had soared to 42 percent, but a majority of Americans still opposed such marriages.

By 2013, when Ginsburg joined a majority of justices to strike down DOMA, support for same-sex marriage had risen above the halfway mark. Today, same-sex marriages are legal in 37 states (Alabama became the latest this week, over the protests of the state Supreme Court chief justice). The U.S. Supreme Court could decide to make marriages legal nationwide in a decision expected this summer.

The Gallup Poll that Brody writes about, which I wrote about myself last May, includes this chart which shows just how much public acceptance of same-sex marriage has changed since Gallup started asking about the issue nineteen years ago:

Gallup Chart SSMBy way of comparison, consider this chart from a 2011 Gallup poll which showed that 87% of Americans were accepting of interracial marriages:

Gallup Interracial Marriage

The Supreme Court’s decision in Loving v. Virginia, which struck down the remaining state laws against interracial marriage was handed down in 1967, and at that point only some 20% of Americans approved of interracial marriages. It wasn’t until the mid-1990s, some thirty years after the Court’s landmark ruling, that support for interracial marriage reached the same levels that support for same sex-marriage is at today. Part of the reason for that, obviously, is generational and the fact that the population of the country was becoming dominated by the Baby Boomers and younger generations for whom race isn’t nearly as big a deal as it was for older generations. Additionally, interracial marriage became a far more common phenomenon in the wake of the Loving decision, and that alone led people to realize that interracial couples were just like any other married couple.

What’s remarkable about the change in public attitude about same-sex marriage is the extent to which it has changed so rapidly in such a short period of time. Even in our fast moving internet era, nineteen years is not a very long period of time and the fact that public attitudes on same-sex marriage, as well as general public attitudes toward homosexuality itself, changed so quickly is fairly astounding. We’ve pondered the reasons for this rapid change several times here at OTB over the years, but it seems to me that the most likely explanation is the one that Ginsburg herself makes note of above. As a general rule, people’s attitudes on issues like this are influenced by what they are exposed to and the people they know. Over the past thirty years or so, it’s become far easier for gays and lesbians to live their lives openly and, as that has happened, Americans have come to find that friends, neighbors, and even family members were gay and that they were just like everyone else in terms of what they wanted out of their lives. Because of that, they’ve become far more accepting of something like same-sex marriage, which just two decades ago seemed like an alien concept to most people. Given all of that, a decision by the Court declaring the bans on same-sex marriage still being enforced in thirteen out of the fifty states are unconstitutional is unlikely to be as big a cultural shock as one might have thought it would be even five years ago. Yes, there will be some places where people will resist, and the hard right wing of the Republican Party will make noises about “judicial activism” and other nonsense, but in the long run a decision in favor of marriage equality will likely be seen in retrospect as so self-evident that people will wonder why we were even debating it to begin with.

On another note, National Review’s Ed Whelan believes that there’s something inappropriate about Ginsburg’s comments:

How can Ginsburg possibly think that it’s proper judicial conduct for her to speak out on this issue while the marriage case is pending before the Court? If she had any sense of her duty to maintain both the appearance and the reality of impartiality, she would recognize that she is now obligated to recuse herself from the case. But of course she won’t.

Whelan, obviously, is opposed to the legal arguments in favor of same-sex marriage so it isn’t surprising that he’d be critical of Ginsburg’s comments here, but his comments here strike me as being way off base. Justice Ginsburg’s comments don’t address the merits of the same-sex marriage cases before the Court, nor do they address the merits of the legal arguments for or against same-sex marriage generally. She was asked specifically whether she believed that the American public was “ready” for a Supreme Court decision that legalized same-sex marriage, a question that is obviously addressed to comments she’s made in the past about the Court’s 1972 decision in Roe v. Wade and her belief that, in retrospect, the Court may have gone too far in that case because the public wasn’t ready culturally.  In that context, there’s nothing at all inappropriate about what she said here and the suggestion that she should recuse herself is, quite frankly, absurd.

Finally, I suppose that one can take Justice Ginsburg’s comments as yet another indication of where the Court is likely to go on this issue, but in that case it would be only the latest in a number of signals we’ve gotten from the Justices that seems to indicate that there is at least a nominal majority of Justices who are prepared to issue a decision striking down the remaining state law bans on same-sex marriage. It’s always possible, of course, that things could turn out far differently and the Court could uphold such bans, but at this point that would be the most surprising outcome from this case.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. humanoid.panda says:

    I do have to say that I am uneasy with RBG discussing an issue that she is about to rule on. I mean, we all know that the court is a political forum, and that she has a long record about gay issues, and her stance on gay marriage is not a secret, but still, I think she should at least give out the illusion of impartiality. Polite fictions do have their social utility…

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  2. @humanoid.panda:

    I’m also kind of disturbed by the implication that the rights of minorities are contingent on the how “ready” the country is for them.

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  3. Loviatar says:

    @humanoid.panda:

    but still, I think she should at least give out the illusion of impartiality.

    Why?

    —–

    Polite fictions do have their social utility…

    With the advent of the current Republican Party (circa 1980 forward) their is no longer any utility to polite fictions.

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  4. Another Mike says:

    If it is true as Justice Ginsburg says that the country is ready to accept gay marriage, then the thing to do is to return the issue to the people. This means returning the issue to the states to decide. This would show good faith in the willingness of the people to accept such a thing.

    I suspect that when it comes down to it Justice Ginsburg is unwilling to leave to the people and their elected representatives. The risk is too great that the desired outcome will not be achieved.

    Most of the cases where gay marriage is allowed have come about by judicial fiat. This is a telling fact. The people seemed to have expressed something in polls which they do not accept in practice.

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  5. Rafer Janders says:

    Nationwide same-sex marriage? No thank you. Call me old-fashioned, but I’d like my same-sex marriages to be performed individually, each in a single location, on a couple by couple basis, rather than nationwide….

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  6. Rafer Janders says:

    @Another Mike:

    Most of the cases where gay marriage is allowed have come about by judicial fiat.

    You say judicial fiat, I say judicial recognition of adherence to the Consitution, tomato, tomatoe…

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  7. An Interested Party says:

    Whelan’s sour grapes taste so sweet…especially rich is this…

    And her public advertising of her “rapport” with President Obama also provides plenty of reason to question her impartiality in the Obamacare exchange-subsidies case or any other case affecting what “he will be remembered for”…

    I wonder if he is similarly dismayed by the conflicts of interest involving Clarence Thomas and Antonin Scalia…

    If it is true as Justice Ginsburg says that the country is ready to accept gay marriage interracial marriage and desegregation, then the thing to do is to return the issue(s) to the people. This means returning the issue(s) to the states to decide. This would show good faith in the willingness of the people to accept such…thing(s).

    What could possibly go wrong…

    Most of the cases where gay marriage is allowed have come about by judicial fiat. This is a telling fact.

    As telling as how so many facets of civil rights in previous decades came about through judicial fiat…perhaps you have a similar problem with that…

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  8. Paul L. says:

    Ruth Bader Ginsburg: Americans Are Ready For…
    the banning of Hate Speech.
    Gun bans and confiscation.
    banning Corporations from exercising any Constitutional rights. So the Government can seize their assets and records and censor them .

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  9. Rafer Janders says:

    @Another Mike:

    I suspect that when it comes down to it Justice Ginsburg is unwilling to leave to the people and their elected representatives.

    Well, look what happened when we left it to the good kind people of the South and their elected representatives to decide whether African-Americans should be treated like ordinary human beings and American citizens….

    I don’t know which countrry you’re a citizen of, but here in the US, the history of letting the majority decide what rights it’s going to let the minority have was not always a happy one, and that’s why have this thing called the Constitution that provides a check to those baser impulses.

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  10. Rafer Janders says:

    @Another Mike:

    Most of the cases where gay marriage is allowed have come about by judicial fiat. This is a telling fact.

    Other telling facts: school desegregation, inter-racial marriage, the ability of gay men and women to adopt, and the repeal of sodomy laws also came about in large part because of judicial decisions.

    Which of those would you like to see reversed?

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  11. Paul L. says:

    @Rafer Janders:
    Dred Scott, Citizen’s United, Schenck v. United States for jail war protesters

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  12. Pinky says:

    The difference is, I don’t think that Scalia or Thomas wouldn’t factor public opinion into their decision-making. From some of Ginsburg’s comments, I believe she would.

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  13. anjin-san says:

    @Another Mike:

    This means returning the issue to the states to decide

    Sorry. No one gets to decide a group of people are second class citizens because they don’t like them. That pesky Constitution again…

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  14. DrDaveT says:

    @Pinky:

    I don’t think that Scalia or Thomas wouldn’t factor public opinion into their decision-making. From some of Ginsburg’s comments, I believe she would.

    Since I’ve picked on you in the past, I will take this opportunity to note that I think you’re making a valid point here.

    The Supreme Court, while of course made up of people steeped in the zeitgeist of (generally) a couple of generations ago, should NOT care what the US is or is not ready for. They should care about what is legal, what is Constitutional, and what is right. The US was (evidently) not ready for the emancipation of the slaves when it happened. That doesn’t mean we should have waited.

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  15. OzarkHillbilly says:

    @Pinky: The difference is, I don’t think Scalia or Thomas would factor in basic morality or empathy into their decisions. Ginsburg at least would remember that her decisions affect real living and breathing people.

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  16. Pinky says:

    @OzarkHillbilly: So, you think that government should operate by morality rather than written law?

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  17. Tyrell says:

    @Another Mike: This also gives justification for the need of elections of federal judges instead of political appointment.

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  18. HarvardLaw92 says:

    @Another Mike:

    For the 9000 and 1th time – we are not a democracy. We are a constitutional republic governed by a written constitution. Same sex marriage bans violate the equal protection provisions of that constitution.

    You do not get to vote on constitutional rights. It’s that simple.

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  19. HarvardLaw92 says:

    @Paul L.:

    Dred Scott was reversed, by the 13th and 14th Amendments.

    Citizens United – no argument – money is not speech – with the caveat that you’ll have to overturn Buckley v. Valeo in order to accomplish this, and that means that you as an individual will have no inherent right to contribute money to political campaigns either. Good for the goose; good for the gander. You can’t have it both ways.

    Schenk – no. You are guaranteed the right to speak free from governmental prior restraint. You are not guaranteed a get out of jail free card with respect to the negative consequences of your speaking.

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  20. HarvardLaw92 says:

    @Tyrell:

    Although it is a monumentally stupid idea, feel free to try to amend the Constitution to accomplish this. I don’t like your chances of success.

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  21. An Interested Party says:

    So, you think that government should operate by morality rather than written law?

    Morality and written law aren’t necessarily mutually exclusive…and as pointed out above, not allowing SSM violates the Equal Protection clause in the Constitution, so the written law part is already covered…

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  22. Pinky says:

    @An Interested Party: So you’re saying that morality should be a factor in legal decisions too? I think you’re ignoring the implications of that. I mean, whose morality? The members of the Court? The majority of voters? Or just yours and Ozark’s?

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  23. HarvardLaw92 says:

    @Pinky:

    I’m not entirely sure that Ruth was expressing a moral viewpoint so much as a pragmatic one – essentially acknowledging that their rulings do not occur in a vacuum, and their getting too far ahead of public opinion can have counterproductive consequences.

    That having been said, as much as I love her personally and admire her professionally, responding to that question as she did probably wasn’t the best idea in the world. She’d have been better advised to have just stated that as a matter of policy she doesn’t comment on issues that are currently before the court, regardless of her position on them, and left it at that. Scalia would be wise to take the same advice.

    I’m almost getting the impression that they are trying to soften up the crowd by throwing the reality out there early – giving people time to adjust to the policy shift before it happens. That’s a good tactic for politicians. Not so much of one for supreme court justices, IMO.

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  24. michael reynolds says:

    @Pinky:

    I mean, whose morality?

    The underlying American morality, different from any particular religious system. Our secular religious document is the Declaration. That’s where our underlying moral principle is laid out. We hold these truths, etc… Life, liberty and the pursuit of happiness.

    It’s not complicated, really. Does an action expand human liberty or reduce it? Same sex marriage expands the boundaries of human liberty. There is no counterbalancing reduction in anyone else’s liberty. It’s pure, it’s simple, it’s obvious. Not complicated, not hard to understand, just as it wasn’t complicated in Brown v. Board or the various other decisions and acts that assumed the essential humanity of black Americans. This is civil rights for gays. Really pretty much a no-brainer.

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  25. Gustopher says:

    Does it do any good to pretend that the Supreme Court isn’t a political body? I think Bush v. Gore ended that fiction, letting everyone see that there wasn’t a conservative wing, there was a Republican wing.

    I do wonder if the audience for these remarks was intended to be us or Kennedy though.

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  26. HarvardLaw92 says:

    @Gustopher:

    Kennedy’s mind is already made up.

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  27. Jenos Idanian #13 says:

    So she’s saying that Americans are ready to have same-sex marriage imposed, but not ready to choose it.

    Interesting observation…

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  28. James Joyner says:

    @Stormy Dragon: @HarvardLaw92:

    For the 9000 and 1th time – we are not a democracy. We are a constitutional republic governed by a written constitution. Same sex marriage bans violate the equal protection provisions of that constitution.

    The Equal Protection Clause has been in effect since 1791. Until perhaps a decade ago, virtually no one would have interpreted it to mean dudes have a right to marry other dudes. I happen to think that they should. But I don’t think the Constitution speaks to that issue.

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  29. James Pearce says:

    @Jenos Idanian #13:

    So she’s saying that Americans are ready to have same-sex marriage imposed, but not ready to choose it.

    Back to this again? Can we please stop pretending that the proper way to decide this issue is by popular vote?

    Are you willing to put your private life, or your family, up for a vote? I’m not.

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  30. Jenos Idanian #13 says:

    @James Pearce: Back to this again? Can we please stop pretending that the proper way to decide this issue is by popular vote?

    You’re right. The American people are too stupid, too bigoted, too hate-filled, too provincial, too backwards, to do the right thing. We need to make sure they are properly guided and directed and controlled by the natural elites so they don’t have to trouble their pretty little heads with The Big Picture.

    Just how does one sign up to become one of these elites, anyway? Obviously, they aren’t elected…

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  31. Jenos Idanian #13 says:

    @James Pearce: Fun fact: gay marriage was approved by popular vote in Vermont, New Hampshire, DC, New York, Washington, Maine, Maryland, Rhode Island, Delaware, Minnesota, Hawaii, and Illinois. So there’s a dozen examples…

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  32. Another Mike says:

    @Rafer Janders:

    Which of those would you like to see reversed?

    Each must be considered on its own merits. It took a bit of mental gymnastics and verbal dexterity for the court to say that some men and women had been treated unequally after they had been afforded the opportunity to marry, but had willing rejected it because it did not fit their lifestyle choice, and then for the court to decree that marriage would have to be redefined to encompass their lifestyle. This is judicial fiat all the way down the line.

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  33. James Pearce says:

    @Jenos Idanian #13:

    The American people are too stupid, too bigoted, too hate-filled, too provincial, too backwards, to do the right thing.

    Sometimes….

    But don’t take that view as a condemnation of the electorate so much as a kind of philosophical point of view. Some things are appropriately voted on, and others are appropriately beyond the scope of public opinion. For me, the issue of marriage -specifically for gay people- is in the latter category.

    And more to the point, from a legal standpoint, we have a situation where this needs to be resolved one way or the other. We can’t have a situation where a same-sex couple from Colorado (where gay marriage is now legal) enters some kind of legal purgatory simply by relocating to Tennessee. That’s absurd.

    Do you think putting this up to a vote will resolve that issue, or complicate it even further?

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  34. grumpy realist says:

    @Jenos Idanian #13: The reason why we get so cranky about stuff that radically differs from state to state is that “basic human rights” end up looking pretty ridiculous if what it simply means is that in one state 51% of the populace thinks a “basic human right” exists and in the the next state over only 49% do. We grudgingly allow regulation and tweaks around the edges (you can get married in State X at 14 with parents’ consent but not in State Y) but as for total barring of particular human rights…? No.

    (How long would the Southern States have kept slavery had it been up for a democratic vote, hmmm?)

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  35. Jenos Idanian #13 says:

    @James Pearce: It’s been my observation that in states where the electorate is allowed to have its say, through legislation or referendum, the results tend to be a lot less contentious than when the electorate is shut out of the process. It seems that the opponents are more willing to accept defeat when they feel that they have at least had their say.

    It’s also been my observation that a lot of the people who insist on going through the courts are more interested in winning — or, more precisely, making the other side lose — than in promoting gay marriage. They genuinely despise the opponents, and to them, the most important thing is making them lose and rubbing their faces in it.

    To me, the infuriated opponents of gay marriage are something to avoid. To them, that is the goal.

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  36. Jenos Idanian #13 says:

    @grumpy realist: We’ve had “marriage inequality” since the outset. Each state already sets its own rules for minimum age and degree of consanguinity, and some states put limits on the number of times one can get married. Should those be set at the federal level, too?

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  37. Tony W says:

    @Jenos Idanian #13:

    The American people are too stupid, too bigoted, too hate-filled, too provincial, too backwards, to do the right thing.

    As proven by the institutions of slavery, separate but equal, lack of equal rights for gays, numerous right-wing attempts to block access to the polls for all but the elite and a dozen other attempts to create an “other” and make them somehow less than the ruling elites.

    Take a constitutional law class one day – you’ll find it’s role in our republic quite enlightening.

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  38. Tony W says:

    @Jenos Idanian #13:

    It’s been my observation that in states where the electorate is allowed to have its say, through legislation or referendum, the results tend to be a lot less contentious than when the electorate is shut out of the process.

    Then clearly you are not a poor black woman in Mississippi

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  39. Tony W says:

    @Jenos Idanian #13:

    So there’s a dozen examples…

    and 38 remaining examples of a bigoted populace refusing to let others be equal. You are really making the opposition’s point this morning Jenos. Try harder.

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  40. Mikey says:

    @James Joyner:

    The Equal Protection Clause has been in effect since 1791. Until perhaps a decade ago, virtually no one would have interpreted it to mean dudes have a right to marry other dudes.

    And between 1791 and 1865 a whole lot of people didn’t interpret it to mean black people could live free. But that didn’t make slavery right.

    And even after that it took another 100 years before it was interpreted to mean black people had the right to equal protection in every state.

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  41. Jenos Idanian #13 says:

    @Mikey: And between 1791 and 1865 a whole lot of people didn’t interpret it to mean black people could live free. But that didn’t make slavery right.

    And just how did the courts address that? Dred Scott? And then Plessy v. Ferguson? Great track record you’re running on there, sport.

    It took a popular movement to end slavery.

    And it’s ludicrous to equate gay marriage with slavery. It’s a false equivalence. What’s being fought about isn’t about the rights of people to do what they want, but to do it with state sanction.

    And, as we’ve seen in many cases, with public embracement. The move now is to punish people who simply don’t want to publicly embrace gay marriage.

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  42. Jenos Idanian #13 says:

    Now I’m going to go away for the day — I’m going to be busy until this evening, at the soonest. Go ahead and engage in the traditional hate-fest; I’ll consider catching up later.

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  43. James Pearce says:

    @Jenos Idanian #13:

    It seems that the opponents are more willing to accept defeat when they feel that they have at least had their say.

    Perhaps, but this goes back to my point about marriage being beyond the realm of public opinion.

    They want their say and they’ll be recalcitrant if they don’t get it. Established. But this is a matter , principally, between the same-sex couples and the bureaucratic arms of the state, rather than an issue of public interest.

    Just because we vote on things in the public interest does not mean we get to vote on everything, or that we should.

    They genuinely despise the opponents, and to them, the most important thing is making them lose and rubbing their faces in it.

    I think that’s true of “both sides.” I don’t know if you heard about a guy here in my home state of CO who walked into a bakery and demanded they bake him a cake that said “God Hates Fags.” They refused. He complained, claiming that he was discriminated against for his religious beliefs.

    This is a guy who is literally saying “I despise my opponents” seeking to “rub their faces in it.” This innocent little bakery who doesn’t want to bake hate cakes.

    And you know on the other side, there is a lot of anger. But it’s not the kind of philosophical, cultural rage coming from the “God Hates Fags” crowd. It’s coming from a place of real injury, not from epithets hurled on the street or written on cakes, but from institutional oppression: church doors slammed shut, children separated from their mothers, jobs lost, lives ruined.

    Have you thought about how they feel?

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  44. Mikey says:

    @Jenos Idanian #13:

    And just how did the courts address that? Dred Scott? And then Plessy v. Ferguson? Great track record you’re running on there, sport.

    Wow, a couple bad cases in over 200 years invalidate my whole point!

    Or not. Because for one thing those cases have long since been overturned, and for another, extreme outliers prove absolutely nothing.

    And it’s ludicrous to equate gay marriage with slavery.

    It’s a good thing I didn’t, then, isn’t it?

    What’s being fought about isn’t about the rights of people to do what they want, but to do it with state sanction.

    What’s actually being fought about is equality under the law.

    The move now is to punish people who simply don’t want to publicly embrace gay marriage.

    How’s that being done? Are the gay police showing up at your door? Are roving mobs of homosexuals throwing glitter on you?

    I don’t give a frog’s fat, bouncy ass if anyone “publicly embrace[s]” gay marriage. I don’t care if anyone likes it, or doesn’t. I care that people are considered equal under the law. There have been times in America’s history where the courts have had to intervene to ensure equality under the law, and plenty of people didn’t like it then, either. But minority rights are not subject to majority vote. The Constitution trumps.

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  45. C. Clavin says:

    @Jenos Idanian #13:

    The move now is to punish people who simply don’t want to publicly embrace gay marriage.

    Poor little Jenos is playing the victim card again. Somehow he isn’t being allowed to practice hatred and anger. Freedom for Jenos and his ilk means the freedom to oppress others. Poor little Jenos.

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  46. Rafer Janders says:

    @Another Mike:

    It took a bit of mental gymnastics and verbal dexterity for the court to say that some men and women had been treated unequally after they had been afforded the opportunity to marry, but had willing rejected it because it did not fit their lifestyle choice, and then for the court to decree that marriage would have to be redefined to encompass their lifestyle. This is judicial fiat all the way down the line.

    I assume you’re talking about Loving V. Virginia, 388 U.S. 1 (1967), where a white man, Richard Loving, had been afforded the opportunity to marry a white woman, and a black woman, Mildred Jeter, had been afforded the opportunity to marry a black man, but each had willingly rejected it because it didn’t fit their lifestyle choice of marrying each other, and then the court decreed that “marriage” would have to be redefined to encompass an interracial lifestyle? That judicial fiat?

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  47. Another Mike says:

    @Tony W:

    examples of a bigoted populace refusing to let others be equal.

    Any man and woman of age can walk into a county clerk’s office and obtain a marriage license. No one will ask about sexual orientation. If a man or woman chooses not to do that, that is their choice. No lack of equality there. It is their lifestyle choice how they wish to live, and if they choose to reject married life, so be it. What is really being demanded is that marriage be redefined to include their lifestyle choice. They are demanding special treatment. They are even demanding that their lifestyle choice be deemed a civil right.

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  48. Another Mike says:

    @Rafer Janders:

    Loving V. Virginia

    I am not familiar with the case. Race is a different category anyway. One’s race is, there is no choice whether to act on it or not to act on it.

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  49. Rafer Janders says:

    @Jenos Idanian #13:

    It’s been my observation that in states where the electorate is allowed to have its say, through legislation or referendum, the results tend to be a lot less contentious than when the electorate is shut out of the process. It seems that the opponents are more willing to accept defeat when they feel that they have at least had their say. It’s also been my observation that a lot of the people who insist on going through the courts are more interested in winning — or, more precisely, making the other side lose*

    *Caveat: argument not applicable to Obamacare, where the GOP takes the exact opposite position.

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  50. Rafer Janders says:

    @James Joyner:

    The Equal Protection Clause has been in effect since 1791. Until perhaps a decade ago, virtually no one would have interpreted it to mean dudes have a right to marry other dudes.

    The Equal Protection Clause has been in effect since 1791. Until 1868, virtually no one would have interpreted it to mean blacks were American citizens.

    The Equal Protection Clause has been in effect since 1791. Until 1920, virtually no one would have interpreted it to mean women had a right to vote.

    The Equal Protection Clause has been in effect since 1791. Until 1971, virtually no one would have interpreted it to mean 18 year olds had a right to vote…..

    Notice a pattern?

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  51. Rafer Janders says:

    @Another Mike:

    Any man and woman of age can walk into a county clerk’s office and obtain a marriage license. No one will ask about sexual orientation…They are demanding special treatment

    Exactly. Great point. Any random man and woman, absolute strangers to each other, with nothing in common at all, with no hope of love or a shared future and whose strongest bond is a drunken hook-up in a bar twenty minutes before, can walk into a county clerk’s office and obtain a marriage license. No one will ask about sexual orientation, or whether they even know each other, or are in love.

    Meanwhile, in many states, a man and a man who’ve been in a committed relationship for thirty years, who love, honor and trust each other, who’ve raised children together, own a house together, have been each other’s trusted companions in sickness and in health, who are part of a large and loving extended family, and who ask nothing more than the chance to grow old and die together, can walk into that same county clerk’s office and be denied a marriage license.

    Just exactly who’s getting special treatment here?!?! The straights or the gays?

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  52. Another Mike says:

    @Rafer Janders:

    Just exactly who’s getting special treatment here?!?! The straights or the gays?

    You just created two stereotypes, a very negative one for those whom you oppose and a very positive one for those whom you favor. Nice work.

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  53. C. Clavin says:

    @Another Mike:

    What is really being demanded is that marriage be redefined to include their lifestyle choice. They are demanding special treatment. They are even demanding that their lifestyle choice be deemed a civil right.

    The first flaw in your argument is that somehow a persons sexual orientation is a lifestyle choice. It’s not.
    What people want is to be treated equally. Your definition of marriage does not allow people with different sexual orientations from yours to be treated equally. What I don’t understand is why you don’t want people to be treated equally? What makes you think you are right when biological science says you aren’t.

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  54. Rafer Janders says:

    @Another Mike:

    Another Mike in 1967 Virginia or most anywhere else in the South:

    Any white man and white woman of age can walk into a county clerk’s office and obtain a marriage license. If a white man or white woman chooses not to do that because they prefer to marry a black woman or a black man, that is their choice. No lack of equality there. It is their lifestyle choice how they wish to live, and if they choose to reject married life, so be it. What is really being demanded is that marriage be redefined to include their lifestyle choice. They are demanding special treatment. They are even demanding that their lifestyle choice be deemed a civil right…..

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  55. Rafer Janders says:

    @Another Mike:

    One’s race is, there is no choice whether to act on it or not to act on it.

    Um, so is one’s sexual orientation.

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  56. Rafer Janders says:

    @Another Mike:

    I am not familiar with the case.

    Oh, if only there were some way you could become familiar!

    http://www.google.com.

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  57. Mikey says:

    @Rafer Janders: Even better:

    http://www.lmgtfy.com/?q=Loving+v.+Virginia

    One click, no muss no fuss.

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  58. Rafer Janders says:

    @Another Mike:

    You just created two stereotypes, a very negative one for those whom you oppose and a very positive one for those whom you favor. Nice work.

    I…don’t think you’re quite getting the point. Once again, but slower and simpler:

    An uncommitted and not in love straight couple can get a marriage license. So can a committed and loving one! The state hands out marriage licenses willy-nilly, just for the asking, so long as you’re of two oppposite sexes.

    An uncommitted and not in love gay couple can not get a marriage license. But neither can a committed and loving one! Just because you’re gay and not straight, the state denies you a marriage license, even if you’ve already built a family and a shared life.

    Again: someone is getting special treatment here, and it’s not the gays.

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  59. @James Joyner:

    There’s a distinction between “the justices on the SCOTUS do not recognize X as a right and so to move forward on that issue we must either change their minds or replace them with justices who do” with, and “the justices on the SCOTUS have always thought that X is a right, but are only voting for it now that they think the country is ready”.

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  60. Another Mike says:

    @Rafer Janders:

    Again: someone is getting special treatment here, and it’s not the gays.

    Who is demanding that the law be changed to accommodate their lifestyle? Seems like asking for special treatment to me.

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  61. Pinky says:

    @Rafer Janders: Congratulations, you just laid out a perfect, well-cited argument why this should be done through a Constitutional Amendment rather than through SCOTUS decisions.

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  62. Gavrilo says:

    @Rafer Janders:

    The Equal Protection Clause has been in effect since 1791. Until 1868, virtually no one would have interpreted it to mean blacks were American citizens.

    The Equal Protection Clause has been in effect since 1791. Until 1920, virtually no one would have interpreted it to mean women had a right to vote.

    The Equal Protection Clause has been in effect since 1791. Until 1971, virtually no one would have interpreted it to mean 18 year olds had a right to vote…..

    Notice a pattern?

    So, you’re arguing that we should amend the Constitution in order to permit same-sex marriage? Because that’s how all your examples were resolved.

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  63. Mikey says:

    @Another Mike:

    Who is demanding that the law be changed to accommodate their lifestyle?

    The real issue isn’t a change in the law, but equality before the law. If a change is necessary then it is only necessary because the current law violates the Constitution.

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  64. Pinky says:

    @michael reynolds: Your reasoning is circular. Our country should follow its written law and morality – but our morality is found in our written law?

    You really need to think through the implications of what you’re saying. Our founding documents weren’t written by people promoting open-ended liberty, they don’t talk about open-ended liberty, and they’ve never been interpreted to support open-ended liberty. Your position seems to be incremental, but only in the direction that you want it to advance. That’s why you have to put your moral code before the written law (even if you don’t admit that’s what you’re doing).

    You can argue that the Constitution supports your position if you want. You can’t argue that it didn’t demand your position until today, but does from now on. That’s just substituting your moral code for the written law.

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  65. Rafer Janders says:

    @Gavrilo:

    So, you’re arguing that we should amend the Constitution in order to permit same-sex marriage? Because that’s how all your examples were resolved.

    No, not arguing that because it won’t be necessary. It can and will be done, more simply, by judicial decisions, most likely in this term of the Court.

    You can affirm basic civil rights via constitutional amendment. You can also, however, affirm them through judicial ruling, as was done in, i.e., Loving v. Virginia, Bowers v. Hardwick, Windsor v. Ontario, or Brown v. Board of Education.

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  66. Rafer Janders says:

    @Pinky:

    It’s cute when non-lawyers think they’ve understood a legal argument.

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  67. KM says:

    @Jenos

    The American people are too stupid, too bigoted, too hate-filled, too provincial, too backwards, to do the right thing.

    Serious question for you: what if they are? What then? I’m not trying to pick on anyone, merely pointing out that some places (too many) in this world, the just are not in control. Some are in our own backyard.

    What if you live somewhere that by legal decree declares you lesser simply because they say so? What recourse as a human being do you have if the society you live in hates your guts? Do you leave, forced out of a home you were born to because your neighbor can’t stand you? Are you forced to accept your status in this world despite this country being lauded as the Land of the Free? Why should you be forced to accept that your worth as a human being depends on that @^#&#^*# across the street and his opinions instead of real facts?

    In what way is that considered American? The Founding Fathers gave us a way to petition the government for these redresses specifically to counteract legislative tyranny. They were concerned with protection from bad government, one aspect of which was a Legislature that wrote off a whole minority (the colonists, in this case) and stripped them of rights on the whims of a few. Yet you complain when this process in put into action.

    Laws are not always right. People even less so. That people can, will and gleefully enjoy denying, oppressing and dehumanizing others is as true as air being essential for life. Anyone who’s been on this earth for more then a day know that life isn’t fair but that’s no excuse to just lie back and let it happen. You don’t have to take that crap and as Americans we are encouraged as individuals to not take that crap from the government specifically. We’re raised from the cradle to believe we have the right and the duty to challenge government and have a chance at winning – we are not a powerless populous.

    You’re trying to say pro-SSM paints everyone in that negative light but really you’re saying you’re ok with the negativity happening as long as we don’t smear everyone with same brush. Hateful people can make hateful laws… doesn’t mean you have to defend them.

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  68. humanoid.panda says:

    @Jenos Idanian #13:

    Each state already sets its own rules for minimum age and degree of consanguinity, and some states put limits on the number of times one can get married. Should those be set at the federal level, too?

    Ideally, yes. Is there any good reason, beyond tradition, for them not to be?

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  69. Doc H says:

    @KM:

    Obama said being gay is a lifestyle choice last month. Did you miss that?

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  70. KM says:

    @Another Mike:

    Any man and woman of age can walk into a county clerk’s office and obtain a marriage license.

    I really don’t get the logic of this – it’s circular as hell. Like can only go with like, but not if they are like. It makes no sense in the real world so why does it get trotted out for this?

    A beer drinker named Bob can go to a bar with wine snobs and is told they can drink whatever alcoholic beverage they want – it’s on tab. Bob asks for a beer and get soundly rebuffed by the coworkers- he’s free to choose any wine like them but not beer. Bob says I don’t like wine and beer’s alcoholic so I’m within the rules. The wine snobs get angry: he wants to be special and have the ability to order beer! They can’t do that – they’ve always ordered wine (cuz everyone has always ordered wine)! Bob counters that they have the right/ability but not the preference – they like wine so it never occurred to them to order beer. They’re free to order beer and he’s free to order wine. He just doesn’t want to. Bob asks for beer again and tells them to add it to the tab like the others. The snobs try to get him thrown out and banned – how dare Bob insist the restaurant recognize his order as legitimate for the tab; he should pay for his own drink since it’s different! After all, he’s free to order any wine, he just wants special privileges!

    Bob can’t understand why his coworkers are pissed (and probably thinks they’re crazy and stuck-up to boot). Bob’s wondering what business it is of his coworkers what he drinks and why its so important to them. Meanwhile, coworkers are having fits over Bob trying to force them to accept his beer-drinking ways in their wine-only routine. They can’t understand why Bob, the bartender and everyone else in the room is staring at them like they’re nuts. They don’t see that they are imposing an arbitrary limit that’s not specified in the actual practice or rules of ordering for the tab – they just know it’s always been wine, it’s always going to be wine and this person has no right to appropriate “their” tab for his strange order.

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  71. KM says:

    @Doc H:

    Obama said being gay is a lifestyle choice last month. Did you miss that?

    And I care why?

    Seriously, the point was it shouldn’t matter what anyone else says/thinks/feels/has opinions on unless they have an actual stake in the game – as in, the ones getting married. Since he’s married to Michelle, he doesn’t. Did you miss that?

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  72. Pinky says:

    @Rafer Janders: You mean you didn’t lay out an argument in support of a Constitutional Amendment? How so?

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  73. Another Mike says:

    @Mikey:

    If a change is necessary then it is only necessary because the current law violates the Constitution.

    Who sez?

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  74. C. Clavin says:

    @Doc H:
    Link? With full context.

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  75. Pinky says:

    @michael reynolds:

    The underlying American morality, different from any particular religious system. Our secular religious document is the Declaration. That’s where our underlying moral principle is laid out. We hold these truths, etc… Life, liberty and the pursuit of happiness.

    That’s funny, now that I think about it. I was too focused on a different point to notice this, but you etcetera’d out the Creator from that sentence. Did you do this on purpose because it undermines your argument?

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  76. Doc H: says:
  77. HarvardLaw92 says:

    @James Joyner:

    Not to split hairs, but there is no explicit equal protection clause in the original draft of the Constitution. The one applicable to our discussion dates to 1868.

    The 5th Amendment is held in practice to contain an implied equal protection clause, but again, we’re discussing matters of state law. Those fall under the 14th Amendment.

    For over 100 years people didn’t interpret that clause as meaning that segregation was unconstitutional either. That doesn’t imply that it wasn’t.

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  78. Doc H says:
  79. Rafer Janders says:

    @Pinky:

    I was too focused on a different point to notice this, but you etcetera’d out the Creator from that sentence. Did you do this on purpose because it undermines your argument?

    How does it undermine the argument, exactly?

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  80. Rafer Janders says:

    @Pinky:

    You mean you didn’t lay out an argument in support of a Constitutional Amendment? How so?

    Because a constitutional amendment is not necessary. The application of equal protection statutes to gays and lesbians in America and/or those seeking marriage rights is already fairly well-settled constitutional precedent under numerous prior rulings, including as mentioned above Loving v. Virginia, Bowers v. Hardwick, Hollingsworth v. Perry, and U.S. v. Windsor. For the same reasons, we didn’t need a new constitutional amendment to establish school desegregation — the court ruling in Brown v. Board was sufficient.

    See, this is a case where you literally don’t know enough to know what you don’t know.

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  81. Mikey says:

    @Another Mike:

    Who sez?

    Well, the Supreme Court could. They haven’t yet, hence the “if.”

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  82. Franklin says:

    @Doc H: He also says there’s 57 states, so I guess he’s always right.

    /Or maybe, just maybe, people who have every waking moment recorded are occasionally found to make a mistake.

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  83. HarvardLaw92 says:

    @Another Mike:

    Who is demanding that the law be changed to accommodate their lifestyle?

    Nobody. You evidently do not understand how equal protection works. The states, despite being under no constitutional burden to do so, voluntarily took it upon themselves to create the legal construct of two party civil marriage.

    Once they did so, equal protection applies and it PRESUMES that every two party couple, irrespective of composition, enjoys the same equivalent right of access to that construct. The only deviation from that presumption is instances of the state demonstrating a convincing (and by that I mean convincing to the satisfaction of a federal court, and ultimately SCOTUS) rationale for treating a subset of the overall population differently. Thus far, states have failed (resoundingly) with respect to demonstrating such a rationale with respect to homosexuals. Virtually every justification that they have advanced is grounded in animus, and SCOTUS has made it very clear for a long time now that animus is a no-no. The fact that society disapproves of a subset, be that disapproval based on a behavioral issue or a genetic issue or whatever else, in and of itself is not a sufficient basis for denying that subset the equal protection of the laws.

    This is what you guys don’t get. The gays are asking nothing more than the 14th Amendment be applied as written. It’s not up to them to prove that they have an equivalent right of access. The constitution presumes that they do. It’s up to the states to demonstrate why it should be denied to them in contravention of the constitution.

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  84. Rafer Janders says:

    @Another Mike:

    Who is demanding that the law be changed to accommodate their lifestyle?

    No one. People are, however, demanding that the law be changed to stop unconstitutionally discriminating against their civil rights.

    Seems like asking for special treatment to me.

    Well, that’s a failure of your viewpoint. Seems like asking for equal treatment to me.

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  85. Pinky says:

    @Rafer Janders: You cited three examples

    The Equal Protection Clause has been in effect since 1791. Until 1868, virtually no one would have interpreted it to mean blacks were American citizens.

    The Equal Protection Clause has been in effect since 1791. Until 1920, virtually no one would have interpreted it to mean women had a right to vote.

    The Equal Protection Clause has been in effect since 1791. Until 1971, virtually no one would have interpreted it to mean 18 year olds had a right to vote…..

    In each case, the Equal Protection Clause wasn’t used by the Supreme Court to change public law, nor did public opinion change suddenly in each year you mentioned. What changed was the Constitution. How are you citing those three examples as proof that an amendment isn’t necessary? There are thousands of examples you could have come up with that would argue your point. You chose three examples that argue against it.

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  86. stonetools says:

    @Doc H:

    Is homosexuality a lifestyle choice? Based on my knowledge of my gay friends and gay relative, I don’t think its merely a lifestyle choice. But I don’t know because I’m not a scientist, man…

    More importantly, I don’t care. Being a Muslim or Buddhist or being a Baptist or a Catholic are also “lifestyle choices”, yet nobody, but nobody, thinks people should be denied marriage licenses based on those “lifesytle choices.”Under the Constution, you are supposed to get a marriage license regardless of such “lifestyle choices”. That’s the beauty of the US Constiution.

    AS Obama said somewhere, gay marriage should be easy . All you have to do is to allow people to do the thing straight people can. It doesn’t cost straight people anything. Its not the big deal that say, school desegregation was. So what’s the problem?

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  87. HarvardLaw92 says:

    @Pinky:

    An amendment isn’t necessary – because we already have one that applies. The 14th.

    In the first instance, the amendment was necessary – because it addressed fundamental flaws contained in the original corpus of the constitution itself. Specifically, the holding in that corpus that Negroes were less than whole people, entitled to lesser, if any, protections under said corpus.

    The second and third examples illustrate what I explained above. Women did not need the 19th Amendment to gain the right to vote. The EPC held to be extant in the 5th Amendment, together with the explicit EPC contained in the 14th Amendment, presumed that they had such a right. The 19th Amendment was simply a more expedient way to accomplish the same outcome.

    Likewise for the 26th Amendment, with the caveat that voting age in and of itself doesn’t implicate equal protection, since any voting age floor applies equally to all citizens. Congress simply mandated a floor lower than that implied by the states, and failed to consider the 10th Amendment implications of its actions. SCOTUS smacked it down in Oregon v. Mitchell, thus an amendment became necessary to impose a federal standard on a state bailiwick. In doing so, equal protection was indirectly applied, since the end result was that every citizen across the nation obtained access to voting at the same age – as opposed to varying ages of access depending on which state one happened to live in. A situation where one had the right to vote in state A, but lost it for a time when moving to state B, was therefore rectified.

    (Note: before you go there, this is not a 10th Amendment issue. Congress didn’t mandate state level bans. The states took it upon themselves to implement them, so no 10th Amendment issue …)

    Would a constitutional amendment establishing SSM have been a more expedient means to accomplish the same eventual outcome? Possibly, but it misses the broader point. It’s unnecessary.

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  88. Rafer Janders says:

    @Pinky:

    In each case, the Equal Protection Clause wasn’t used by the Supreme Court to change public law, nor did public opinion change suddenly in each year you mentioned. What changed was the Constitution. How are you citing those three examples as proof that an amendment isn’t necessary? There are thousands of examples you could have come up with that would argue your point. You chose three examples that argue against it.

    What on earth are you talking about? This is total argle-bargle,and again, you don’t understand enough of the argument to even get that you don’t understand it. I’m not “citing those three examples as proof that an amendment isn’t necessary” because I was never citing those three examples in response to an argument about amendments in the first place. My original post was in response to James Joyner’s post below, where he wrote:

    The Equal Protection Clause has been in effect since 1791. Until perhaps a decade ago, virtually no one would have interpreted it to mean dudes have a right to marry other dudes. I happen to think that they should. But I don’t think the Constitution speaks to that issue.

    I then cited three cases where what people thought in 1791 was not what they thought years later. The fact that I cited consitutional amendments rather than court cases was purely random, the result that I know the years of the amendments by heart but would have had to look up the years of some of the court cases. It was in no way an argument that somehow, bizarrely, a consittutional amendment is needed to enshrine marriage equality into the law — nor would it have been understood that way by anyone with even a scintilla of legal understanding.

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  89. C. Clavin says:

    @Doc H:
    So what he said was:

    “I think people know that treating folks unfairly, even if you disagree with their lifestyle choice, the fact of the matter is they’re not bothering you. Let them live their lives and under the law they should be treated equally,”

    I’ll skip debating the fine points and just wonder…if you are ready to accept his authority that it’s a lifestyle choice…then why aren’t you also ready to accept his authority that you ought to…

    Let them live their lives and under the law they should be treated equally.

    Your position is intellectually inconsistent…and thus dishonest.

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  90. Doc H says:

    @C. Clavin:

    i don’t have a position. I’m just reporting the news. I posted a link and you are suddenly calling me dishonest? It’s obvious you are upset with the president but that has absolutely nothing to do with me. Spew your venom at someone else.

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  91. Rafer Janders says:

    @Pinky:

    I was too focused on a different point to notice this, but you etcetera’d out the Creator from that sentence. Did you do this on purpose because it undermines your argument?

    Again, how does it undermine the argument, exactly?

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  92. HarvardLaw92 says:

    @Doc H:

    You attempted, IMO, to make the implication that being gay is a lifestyle choice, as opposed to being an inherent trait, and used some statement from the president as a validation of that premise.

    As stated above, it’s immaterial. It doesn’t matter whether it’s a choice or a trait – they are still protected by the 14th Amendment by virtue of being citizens. That’s all that is required.

    The whole “choice” argument is, IMO, window dressing for bigotry. A person inclined to discriminate can more easily rationalize their bigotry if they view it as being a choice. It’s somewhat more difficult for them to do so if it’s an inherent trait. They want to discriminate, so they consider being gay to be a choice, and in doing so they sanction their bigotry. It’s an exercise in making themselves feel better about being bigots.

    The same 14th Amendment that protects you and protects me equally protects them, and I went to law school just to be sure about that…

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  93. Another Mike says:

    @HarvardLaw92:

    An amendment isn’t necessary – because we already have one that applies. The 14th.

    You have a fine legal mind and I am just a hayseed, but it seems to me that it is just begging the question. Two things which are equal must be treated equally under the law, but it has not been established that same-sex and opposite-sex unions are indeed equal. Just to decree that the 14th amendment says they are equal settles nothing.

    Doesn’t the Windsor decision say that marriage is the business of the states and it is not really a federal issue?

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  94. C. Clavin says:

    @Another Mike:

    it has not been established that same-sex and opposite-sex unions are indeed equal

    But you are claiming that they are not equal. It seems to me the onus is on you to prove they are not. The SCOTUS seems to be inclined to say that they are. Certainly the predominance of cases have come down on the side of them being equal.

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  95. HarvardLaw92 says:

    @Another Mike:

    but it has not been established that same-sex and opposite-sex unions are indeed equal

    It doesn’t have to be established. Read my explanation above again. Equal protection PRESUMES that they are equal. That’s the default state of affairs. For equal protection to be abrogated, the states have to demonstrate a compelling rationale that they are NOT equal – and they can not base that demonstration on the fact / assertion that society dislikes or disapproves of SSM. We call that animus, and it is long established precedent from SCOTUS that animus is not a valid rationale for abrogating equal protection. Ever. Period. End of story. Preserving social mores doesn’t cut it. States have to come up with something else, and they almost overwhelmingly haven’t been able to do so.

    Doesn’t the Windsor decision say that marriage is the business of the states and it is not really a federal issue?

    No, it says that a federal statute which established disparate treatment at the federal level – specifically Section 3 of DOMA – for heterosexual marriages and same-sex marriages violated the implied equal protection grant of the 5th Amendment, and was therefore unconstitutional.

    Now, stop to consider that. We have 2 equal protection clauses in the Constitution – one implied in the 5th Amendment which governs federal statutes / actions, and one explicitly stated in the 14th Amendment that governs state statutes / actions.

    There is no universe in which a premise can be held to be inherently unconstitutional at the federal level, but constitutionally permissible at the state level. It would be like saying, just as an example, that the federal government can’t violate freedom of religion, but states can.

    This is why Windsor was recognized at the time that it was handed down, by myself and many others as well, as being the death knell for state level bans.

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  96. Doc H says:

    @HarvardLaw92:

    There are a millions of people who agree with the president that being gay is a lifestyle choice.
    i honestly have no opinion as i do not have issues with gay people. I still do not know scientifically if being gay is hereditary or a lifestyle choice. I do know that suing under the 14th amendment is not going to suddenly make people who were against gay marriage supportive. Society is almost there but not quite yet.

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  97. Pinky says:

    @Rafer Janders: I understand that that’s not what you thought you were arguing. But it’s what you argued. Example 1 wasn’t solved by the judiciary, but by an amendment. Example 2 wasn’t solved by the judiciary, but by an amendment. Example 3 wasn’t solved by the judiciary, but by an amendment. Do you see how citing Examples 1, 2, and 3 sets up the conclusion that the judiciary isn’t going to be the answer to this situation? You’ve got 200+ years of examples to choose from. You chose those three.

    “I liked Kill Bill. I liked Reservoir Dogs. Pulp Fiction was brilliant. John Woo is underappreciated. What do you mean, I’m not supporting my argument about John Woo? You’ve got to be stupid to conclude that I think Tarantino is better than Woo.”

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  98. HarvardLaw92 says:

    @Doc H:

    They’re free to believe whatever they want to believe, and no law or court ruling or constitutional amendment is going to change their minds on that position. I view it as being a rationalization for bigotry, but under our system they have the right to hold bigoted beliefs. Not so much of one to ACT on those beliefs, but within the confines of their own minds, they’re free to think whatever they want to think.

    The law, however, doesn’t have that luxury. It’s governed by a written set of standards that mandate how citizens are to be treated by their government.

    Society may get there, and I agree that we’re seeing a great deal of progress in that regard, but societal disapproval isn’t something that the law can consider when applying the standards of the constitution to an issue. In fact, SCOTUS has been pretty explicit in saying that courts CAN’T consider societal disapproval of a person or group of people as a valid rationale for denying equal protection. It’s just not allowed.

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  99. KM says:

    @Doc H:

    I do know that suing under the 14th amendment is not going to suddenly make people who were against gay marriage supportive.

    Again with the approval. Who cares? Why do they matter? “Well, they’ll never approve!” is the last gasp of a dying premise trying to stay relevant. How presumptuous to think someone’s right to life, liberty and the pursuit of happiness is depending on their tongue-clucking. My grandmother doesn’t approve of my yoga pants and some idiot in Montana is trying to ban them in public. Am I supposed to care that fussy old people disapprove of my workout gear? This should affect decisions and outcomes in my life under what authority? I’ll wear whatever I damn well please, thank you very much, because that’s my right as an American. That same right should be applied to marriage – plenty of marriages suffer from social disapproval (money, social status, religious difference, etc) so what makes this any different? I will marry for love, not to make someone other then my spouse happy.

    News flash to all nosy busy-bodies: there are people in this world that you will never approve of, actions that will never get your thumbs-up and beliefs that will never get a moment’s consideration from you. It doesn’t matter because it has nothing to do with you. You are not that important in this life. Check your ego and go on with your own stuff, leave the rest of the world alone. Feel free to be the finger-shaking old biddie on the corner but the law cannot and should not be an instrument for public expression of (fading) social disapproval of the majority on a minority.

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  100. anjin-san says:

    @James Joyner:

    Until perhaps a decade ago, virtually no one would have interpreted it to mean dudes have a right to marry other dudes.

    I’m not sure I see your point. Until very recently in our history, same sex marriage was not an issue, or even a concept. The gay rights movement is less than 50 years old.

    Do certain people not enjoy Constitutional protections because they did not demand a seat at the front of the bus early enough in our nation’s history? Is there a statute of limitations on the 14th amendment?” Sorry gay dudes, if you wanted to get married you should have thought about it in 1827″…

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  101. anjin-san says:

    @KM:

    I do know that suing under the 14th amendment is not going to suddenly make people who were against gay marriage supportive.

    Hey Doc H – I’ve decided I don’t support your marriage. That means it should be illegal. From now on, you can only marry the spouse of your choice if I sign off on it.

    You good with that?

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  102. KM says:

    @Pinky:

    “I liked Kill Bill. I liked Reservoir Dogs. Pulp Fiction was brilliant. John Woo is underappreciated. What do you mean, I’m not supporting my argument about John Woo? You’ve got to be stupid to conclude that I think Tarantino is better than Woo.

    Ah Pinky? You would have had a great point without that last bit. That’s an assumption based off of reading into what was said. In strict terms, the four preceding statements are not mutually exclusive as statement of fact. John Woo can be unappreciated at the same time as liking the above movies and thus render them all true. You would have been correct about contradictory supporting evidence in an argument except for the logical inference in your conclusion at the end – false syllogisms render the exercise null.

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  103. anjin-san says:

    @Pinky:

    I understand that that’s not what you thought you were arguing. But it’s what you argued.

    Aren’t you lucky to have Pinky on hand to explain these things to you? After all, without him you would not know that you regard two murdered cops as a Christmas present.

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  104. anjin-san says:

    @Another Mike:

    They are demanding special treatment.

    How exactly? A straight person can marry the consenting adult of their choice (assuming that adult consents to the marriage). Get a blood test, pay a small license fee, go see the preacher, or justice of the peace, etc. When I wanted to get married, the process was very simple.

    Gay people are demanding the right to do what I did. No more, no less.

    How is that demanding “special treatment”?

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  105. DrDaveT says:

    @Pinky:

    you etcetera’d out the Creator from that sentence. Did you do this on purpose because it undermines your argument?

    My creator is fine with same-sex marriage. I can’t speak for yours.

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  106. C. Clavin says:

    @anjin-san:

    How is that demanding “special treatment”?

    Because they want to be free to act in ways that “Another Mike” (as well as others) doesn’t approve of. Duh.

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  107. Doc H says:

    @anjin-san:

    That’s not up to me or you. That’s for the American people or the courts to decide.

    btw, The leading argument against DOMA all along has been that the federal government lacks authority under the Constitution to create and enforce a definition of marriage different from that of the state in which a couple resides. It is hard to think of an issue more clearly reserved to state law under constitutional tradition than the definition of marriage.

    The court has held that “regulation of domestic relations” has “long been regarded as a virtually exclusive province of the States” (Sosna v. Iowa, 1975).

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  108. Pinky says:

    @anjin-san: I can’t remember; did I single him out?

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  109. Doc H says:

    @KM:

    ” Check your ego and go on with your own stuff, leave the rest of the world alone. Feel free to be the finger-shaking old biddie on the corner but the law cannot and should not be an instrument for public expression of (fading) social disapproval of the majority on a minority”

    Please take your own advice and stop reiterating the same argument. Just because you repeat the same lines and are long winded does not make you right. It’s obvious you have some emotional attachment in this argument or you wouldn’t be rambling with the same lines.

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  110. anjin-san says:

    @Doc H:

    So are you unaware of Loving v. Virginia, or just pretending it never happened?

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  111. Another Mike says:

    @HarvardLaw92:

    the states have to demonstrate a compelling rationale that they are NOT equal

    I think the states can do this, but I don’t think the court is interested in my opinion, or even in yours.

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  112. anjin-san says:

    @Pinky:

    I can’t remember; did I single him out?

    That’s right, you slimed with a very broad brush. Singling someone out would have required you to produce evidence to support your claim, something you were unable to do.

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  113. C. Clavin says:

    @HarvardLaw92:

    The same 14th Amendment that protects you and protects me equally protects them, and I went to law school just to be sure about that…

    C’mon…you went to law school to make boatloads of money and score all the hot chicks…everything else was just gravy.

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  114. HarvardLaw92 says:

    @Doc H:

    Sosna is not a great example to use. In that case, the appellants were not foreclosed via state policy from access across the board, as those seeking same-sex marriages unavoidably were.

    The implementation of policy regulating marriage within their jurisdiction are absolutely the province of states, but those states are not immune from equal protection review of the laws that they enact in pursuit of that goal.

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  115. HarvardLaw92 says:

    @Another Mike:

    Thus far, they have failed to do so, in resounding fashion. The argument you’re presenting has been smacked down by various federal courts close to 60 times now post Windsor. It’s a non-starter.

    As to it being my opinion, it’s not. It’s SCOTUS’s well promulgated opinion. I cite it here because it’s precedent. It’s the standard that governs here.

    If you’d like a reading list of cases wherein they lay out that reasoning, to better understand what I’m trying to explain to you, let me know.

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  116. Mikey says:

    I don’t know why it’s so hard for opponents of marriage equality to grasp how simple this really is. The equal protection clause is written in very clear English and we have well over 100 years of jurisprudence to which we can refer. We’re not trying to solve the Goldbach Conjecture here.

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  117. Doc H says:

    @anjin-san:

    I’m aware of the case and it has been successful in another of states. It’s great for the states where it has been successful, but I’d rather let the democratic process decide.

    i can also make the case that the original meaning of the Fourteenth Amendment clearly requires courts to strike down all affirmative action programs, but that is something i am not in favor of.

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  118. HarvardLaw92 says:

    @Another Mike:

    Oh hell, I’ll give it to you anyway. Maybe it’ll help you or someone else reading this to better understand the legal concepts and issues in play here.

    U.S. Department of Agriculture v. Moreno, 413 U.S. 528 (1973)

    Palmore v. Sidoti, 466 U.S. 429 (1984)

    City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985)

    Romer v. Evans, 517 U.S. 620 (1996)

    Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)

    Loving v. Virginia, 388 U.S. 1 (1967)

    Plyler v. Doe, 457 U.S. 202 (1982)

    Zobel v. Williams, 457 U.S. 55 (1982)

    Lawrence v. Texas, 539 U.S. 558 (2003)

    Additionally, the case you are focusing on, United States v. Windsor, 570 U.S. ___ (2013), contains verbiage via which Justice Kennedy directly implicates the animus inherent in DOMA.

    It’s not my opinion. It’s their opinion. Animus is a no-no.

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  119. anjin-san says:

    @Doc H:

    but I’d rather let the democratic process decide

    Is there something undemocratic about our court system? After all, it was established by the founding fathers and is an integral pillar of our system of government.

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  120. Doc H says:

    @anjin-san:

    i don’t know but if you can answer that well, i’ll vote for you in 16′

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  121. HarvardLaw92 says:

    @Doc H:

    but I’d rather let the democratic process decide.

    We’re not a democracy, and the constitution is not subject to a vote.

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  122. Doc H says:

    @HarvardLaw92:

    You’re right,we’re an oligarchy, i sometimes forget. its good we need more lawyers like you who can tell us just what these Founding Father meant.

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  123. anjin-san says:

    @Doc H:

    i don’t know

    If you don’t know, you might want to give your position more thought and get back to us.

    i can also make the case that the original meaning of the Fourteenth Amendment clearly requires courts to strike down all affirmative action programs,

    Great. I recommend starting your own blog. Google makes it easy to do and free. In the meantime, affirmative action is not the topic here.

    I also wanted to ask if you are clear on the concept of “checks and balances” in our system. Part of the role of the courts is to act as a check against unconstitutional actions taken by voters or legislatures. For example, the voters of a state can vote in an initiative that says “black people can’t use the same bathrooms as white people”, but that is unconstitutional and would be stricken down by the courts.

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  124. C. Clavin says:

    @Doc H:
    Strictly speaking we are a Republic…but you are right…we have become an Oligarchy.

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  125. HarvardLaw92 says:

    @Doc H:

    Appealing to the founders is a losing proposition. They created a system that, viewed as they designed it, can only be termed as having been a benevolent plutocracy. What’s more, they were well aware of that fact and quite a few of them considered it to be not only justified, but desirable. They were many things, but egalitarian wasn’t one of them.

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  126. Another Mike says:

    @C. Clavin:

    Because they want to be free to act in ways that “Another Mike” (as well as others) doesn’t approve of.

    They are already free to act as they choose. That’s not the issue. The issue is whether the state can be forced to call it marriage.

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  127. anjin-san says:

    @Another Mike:

    They are already free to act as they choose.

    Not if they are being denied a marriage license.

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  128. Mikey says:

    @Another Mike:

    The issue is whether the state can be forced to call it marriage treat everyone equally under the law.

    There, I fixed it for you.

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  129. C. Clavin says:

    @Another Mike:

    They are already free to act as they choose.

    No. They are being denied a marriage license.
    If it wasn’t for the fact that people are being treated as second class citizens…it would be funny that freedom loving Republicans are so intent on denying freedom.

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  130. michael reynolds says:

    @Pinky:

    There’s nothing circular about it. There are two separate but complementary and intertwined systems, one of morality, one of law. It is legal to use racial epithets, it is not moral. It is moral to help a person in need, but it is not usually required in law. Law ≠ Morality.

    Certainly the Founders did not intend to promote gay marriage, but they also didn’t intend to promote women’s right to vote or African-Americans’ right to eat in a restaurant. But they set a direction.

    You could find obvious parallels in Christian morality which once found slavery moral, and now finds it immoral. Or Jewish morality which once held that parents had the right of life and death over children, and now rejects that notion. All moral documents are subject to expansion and re-interpretation, and where that re-interpretation moves in the general direction of the original, it is reasonably seen as an evolution. The essence of the Declaration was to assert the fundamental equality of men, without reference to their family’s status. That assertion moved the ball of human liberty decisively in the direction of expanding human liberty and equality. Since then we have continued in that same direction – we expanded the franchise, eliminated slavery, eliminated chattel status for women, etc…

    So, there’s really not much basis for debate on the fundamental morality. SSM is clearly in line with 200 years of expansion upon that initial assertion that all men are created equal and endowed from birth with rights. I believe that courts have an obligation to at least consider the arc of history and our own moral evolution. Law cannot enshrine unnecessary limits on human liberty without conflicting with the parallel system of American morality. The two systems are not coterminous but if they stray wildly far apart the law will lose legitimacy.

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  131. anjin-san says:

    @Jenos Idanian #13:

    So she’s saying that Americans are ready to have same-sex marriage imposed, but not ready to choose it.

    Where do you get the idea that you have the right to interfere in the choices another makes about their marriage?

    You are taking an odd position for one who has proclaimed himself to be a champion of individual liberty on so many occasions – gays/lesbians will have equal protection under the law when a bunch of people who despise them say they do, and not a moment sooner.

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  132. C. Clavin says:

    @anjin-san:

    Where do you get the idea that you have the right to interfere in the choices another makes about their marriage?

    They are interfering in Jenos’s life because, yuk.
    Jenos is the viktim here.
    Why can’t you get that?

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  133. Pinky says:

    @michael reynolds: First thought – you’ve just said that every slippery-slope argument is true. Whatever your side gets, you’ll want more. It’s not a stretch to say, as some on the right have said, first gay marriage then bestiality. You’re saying flat-out that you expect more battles and more ground gained.

    Beyond that, there doesn’t seem to be any way of determining the morality which underlies our system – who’s to say how far down the “arc” we should be? Can the courts decide what comes next? Or should they be guided by, well, what? And even your general framework of “more freedom” doesn’t fit, because we’re moving away from economic freedoms. I’m not even sure how to say this, it’s so obvious. Why can’t the courts say that you don’t get copyrights any more? Copyrights inhibit freedom. On what schedule should the courts make these determinations? Do you really want to put them above the written law? Would written law or representative democracy have any meaning if the courts are free to decide what, where, and when?

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  134. Pinky says:

    @michael reynolds: And I made a mistake there saying, your side. There is no uniform side on the left. It was said that in the 1700’s there was a different theory of natural law for every publishing house in Europe. The same will be true if every judge is free to determine the law on the basis of his perception of the current point in the arc of history. Law requires uniformity; you’re pushing for caprice.

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  135. anjin-san says:

    @Pinky:

    It’s not a stretch to say, as some on the right have said, first gay marriage then bestiality.

    Damn, you just can’t help yourself, can you?

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  136. HarvardLaw92 says:

    @Another Mike:

    The issue is whether the state can be forced to call it marriage.

    That is not an issue at all. If they propose to call it marriage for heterosexuals, they must apply the same treatment to marriage for homosexuals.

    You seem to be busily tying yourself in logical knots in an attempt to find a way to rationalize the position that “they” are somehow different from, or lesser than, heterosexuals. That is a perfectly acceptable position for you to take as an individual, within the confines of your own belief structure.

    It is not, however, a position that the law can take. We do not do separate but equal in this country any longer. It ended 61 years ago on the altar of Brown v. Board of Education of Topeka. The law must treat all similarly situated parties the same, and the simple fact is that – despite the consternation the concept causes among certain segments of the populace – homosexuals are identically situated to heterosexuals with respect to the legal burdens and responsibilities imposed as qualifying criteria for forming two party civil marriage covenants.

    The legal concepts in play here are not complicated, nor are they remotely vague. What is introducing confusion and ambiguity is the determination of those resistant to the idea that “those people” are the same as they are to find a way to twist the law to suit that resistance.

    I understand on some level why they might want to do that, but it’s still an exercise in self-delusion.

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  137. HarvardLaw92 says:

    @Pinky:

    Law requires uniformity; you’re pushing for caprice.

    Hence the concept of a court of finality – the last word on a subject within the law. A court possessing ultimate authority whose rulings are not subject to dispute or appeal. How lucky for us that we have such a court, and it will be imposing uniformity on this very issue somewhere around late June / early July.

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  138. anjin-san says:

    @Pinky:

    Why don’t you explain what gay marriage and bestiality possibly have to do with each other.

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  139. michael reynolds says:

    @Pinky:

    Good grief, really? Bestiality? Are you channeling Jerry Falwell from beyond the grave? What is it with right-wingers and screwing farm animals?

    I’m not “flat-out” saying I expect more marriage battles, in fact I don’t expect any, I think we’re done. I imagine someone will make a play for polygamy but I expect that will die on the altars of property laws, economics and feminism, particularly since polygamy seems so often to edge into child abuse.

    But if we have that debate then we have that debate. So what? We have that debate.

    Conservatives live in a world of fear, always desperate to keep things as they are, or more often to make things as they never were except on Leave It To Beaver. Fear leads to paralysis, and far more empires have gone down to dust from sclerosis than from too much adaptability.

    Look, every movement of any kind creates the possibility of a slippery slope. The law doesn’t fix that. Legal decisions declaring that corporations have free speech rights by your logic would lead inevitably to a legal decision that dogs should get the vote. You don’t solve the problem of slippery slopes by crying, “Law!” Don’t forget, what the Nazis did in the late 30’s and early 40’s was legal under German law. It was immoral, but legal. Ditto what we did to Indians. Ditto what Aussies did to aborigines. I could cite examples all day long. The law is as subject to distortion as any other system, it ain’t magic, it’s just a tool in the hands of humans.

    Both morality and law are required, neither survives long without the other, and as I said the systems while not identical or coterminous, are intertwined. You need a spine (law) and a heart (morality.) It’s an illusion to imagine that they are not intertwined, they always have been, here and everywhere.

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  140. HarvardLaw92 says:

    @michael reynolds:

    Personal pet gripe: those people aren’t arguing for polygamy. They’re arguing for bigamy.

    In a truly polygamous marriage, every partner would be equally married to every other partner. You’d have, say, a 5 person marriage in which every involved party was married to four other people.

    These people typically are not arguing for that (for obvious reasons …). They tend to be the one guy / many wives people, and that’s just plain old fashioned bigamy.

    Personally, I’m not bothered by it in concept, although they’ll need to call some lawyer other than me to sort out the nightmare scale property issues. If it gets them off, well, good luck and G-d bless, but legally its dead out of the gate. It’ll go nowhere.

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  141. DrDaveT says:

    @Pinky:

    Why can’t the courts say that you don’t get copyrights any more? Copyrights inhibit freedom.

    Yes, they do. Equally. For everyone. They don’t only apply to whites, or men, or heterosexuals, or Catholics, or blonds, or fluent Welsh speakers.

    Why is this such a difficult concept for you?

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  142. michael reynolds says:

    @HarvardLaw92:
    See, there’s proof that you’re a lawyer.

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  143. bill says:

    most people don’t really care if 2 same sex people want to swap rings and live in some sort of “married” fashion- it’s the “showering of benefits” that’s the issue.
    in the end we all (those of us who actually pay taxes) pay for this lameness. low info voters are just that…..
    i’m just glad she was sober when she spoke.

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  144. Pharoah Narim says:

    Well well, a room full of people who regularly hurl accusations of blindness to white privilege at their conservative rivals– while simultaneously comparing the struggle of SSCs to obtain marriage licenses; with the African-American struggle for life, limb, and to accumulate a little wealth. The irony is delicious.

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  145. michael reynolds says:

    @Pharoah Narim:
    WTF?

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  146. Tyrell says:

    @humanoid.panda: Weird, bizarre. Judge Ginzburg is giving the old, worn argument that was heard sometime ago:”well, everybody’s doing it”. The problem there is that everyone is not “doing it” and everyone does not approve of it. I don’t know where Judge Ginzburg is, but maybe she should get out into other areas of the country and here what they have to say. Not a bad idea; hold some kind of “town hall” type meetings where people can give their views about this and other issues, whether they feel up, down, left, right, center, over, under, ac,dc or whatever. Maybe it is time these judges got out of their chambers and talked to the people out in the real world.

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  147. HarvardLaw92 says:

    @Tyrell:

    IOW:

    “Damn that Earl Warren! If he’d just have asked us, heeda knowed we don’t want our white wimmun marryin them damn Nigras …”

    Public opinion has no bearing, and should have no bearing, on how a federal judge applies a written constitution …

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  148. michael reynolds says:

    @HarvardLaw92:
    At the very best man manages an imperfect objectivity. Very few even tip the balance to the objective side of the scale. Some of the greatest minds in human history believed themselves to be objective but in retrospect are clearly shown to be prisoners of their presuppositions. Aristotle and Newton were both captured by their presuppositions, and many of their beliefs are rendered nonsense by virtue of that. There are some smart folks on the big court, but I’m sure you’d agree there are no Aristotles or Newtons.

    So long as h. sapiens is the one doing the interpreting, the law will be an imperfect tool. The same applies to moral systems, and indeed just about all the activities of mankind, excepting perhaps simple arithmetic. We are subjective by definition, we sometimes attempt to acquire objectivity, but it does not come naturally or easily to us.

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  149. Pinky says:

    @michael reynolds: Your assertions about the arc of history remind me of Hegel. He held that centuries of theses and antitheses had merged into the ultimate end: Hegel-era Germany. He never articulated why history would happen to stop at the moment he was observing it. There’s no reason to believe that, then or now.

    And you’ve got to play pretty fast and loose with history to create a narrative. You have to leave out certain eras, certain cultures, and movements and events even within the times and places you’re using. Your sweep of history toward freedom has to ignore the drinking age, forced union membership, and demographics.

    And why farm animals? They’re among the few things currently outside the Overton window. I could have gone with incest, I guess. The funny thing is, you reply, eww, that’s gross, that’s outside the Overton window, why do you guys think about creepy things so much – while pushing for things that were considered creepy and unacceptable a few years ago. You can’t simultaneously claim to be on the right side of history and ignore the historical patterns. Or maybe, back to the first and second paragraphs, that’s the only way you can claim to be on the right side of history.

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  150. Another Mike says:

    @HarvardLaw92:

    Why is there even such a thing as marriage? Why is the government even involved in romantic and personal relationships? I would say it is because of the children. Government has a compelling interest in marriage because marriage — barring defect, can bring forth children.

    Marriage recognizes the fundamental nature of man and woman and the relationship of children with their biological parents. Marriage is a personal relationship that government is compelled to sanction and regulate for its own interest. Marriage is a good, and the law recognizes this.

    So-called same-sex marriage is not a comparable good. The one positive thing about it is that it is normally easier for two people to raise children. The children are not really children of the marriage, but of one individual and a third person outside the marriage.

    It should be easy for government to show compelling interest in giving special status to marriage. There seems to be a reverse animus in the courts. The judges feel that, by god, its time has come, and we like it and want it, so a little perfunctory legalistic wordsmithing, and behold, we have it.

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  151. DrDaveT says:

    @Another Mike:

    The children are not really children of the marriage, but of one individual and a third person outside the marriage.

    You still haven’t answered my question about adoption. Until you can explain why it is OK for a heterosexual couple to raise a child not biologically their own, but unacceptable for a same-sex couple to do the same, all of your obsession with biological procreation is irrelevant to the question of marriage laws.

    Why is there even such a thing as marriage?

    I answered this question upthread. You aren’t listening.

    Why is the government even involved in romantic and personal relationships?

    1. Property rights
    2. Inheritance (see #1)
    3. Necessary decisions made on behalf of a person no longer competent
    4. Child-raising

    I would say it is because of the children.

    In part, yes — but the RAISING of them, not the creation of them. The government doesn’t much care where the children come from; it cares that they grow up to be productive members of society. That goal does not care in any way what plumbing the parents have.

    Again, the test case for you is adoption. If you aren’t equally willing to have a child adopted by a same-sex or mixed-sex couple, your hangup has nothing to do with biological procreation.

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  152. Dave says:

    @Another Mike: You’re naive about the purposes of marriage. Marriage is very much, although not all, about property. Where happens to it when someone dies? What does the spouse get upon the death of their partner? Do they still have rights even if left out of the will, if there is one? If someone claims to be a child of the deceased are they recognized for purposes of inheritance? Up until relatively recently the male members of the upper / titled classes often had many children, only some by marriage. What were the rights of all those children? Marriages were, and in some places still are, arranged with the purpose of uniting two families for business and political reasons, often land and money went with the marriage. There have to be rules for dividing things up as the generations change.

    I’d argue that a large factor in the mainstreaming of gay marriage is that fewer straight couples are having children now (lower birth rate etc.) and this has put property / money issues (including social security survivor’s benefits, health care partner benefits and other things) more clearly in the forefront.

    Also, you should probably take notice that gay couples often have children – from former hetero relationships, through surrogacy and adoption.

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  153. Rafer Janders says:

    @Another Mike:

    Why is there even such a thing as marriage? Why is the government even involved in romantic and personal relationships? I would say it is because of the children. Government has a compelling interest in marriage because marriage — barring defect, can bring forth children.

    Government is not involved in marriage because of “romantic and personal relationships.”. Government is, rather, involved in marriage because marriage is a co-mingling of property, including children and also houses, bank accounts, cars, companies, etc. Government is not, actually, really in the marriage business — rather, it’s in the partnership business, setting up the rules whereby two people not previously related form a partnership to have joint and mingled custody of their house, car, money, children, etc. And then it’s also in the dissolution of partnership business, figuring out how to allocate those assets if the partnership splits up.

    Now whether the partnership is composed of one man and one woman, two men, or two women is largely immaterial — just as it is in the wider world of business.

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  154. Rafer Janders says:

    @Another Mike:

    The children are not really children of the marriage, but of one individual and a third person outside the marriage.

    My cousin’s wife died, leaving him with two young children. A few years later he married another woman, who has raised those children as her own for the last ten years.

    Are you seriously asserting that my cousin’s children are not somehow real children of the family???

    You’re a loon with some very sick and twisted notions of what a family is and isn’t.

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  155. C. Clavin says:

    @Pinky:
    Be stealthy?
    That’s just fvcking stupid.
    Sorry…it just is.
    Gays can’t have equal rights because, beastiality.
    WTF

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  156. Turgid Jacobian says:

    @DrDaveT You can simplify your list by deleting 4 and changing 3 to “no longer or not yet competent”

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  157. C. Clavin says:

    @C. Clavin:
    Beastiality…not be steatlthy…damn autocorrect.

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  158. Another Mike says:

    @DrDaveT:

    If you aren’t equally willing to have a child adopted by a same-sex or mixed-sex couple, your hangup has nothing to do with biological procreation.

    Adoption is doing the best you can with the circumstances which you have been handed. If a child has been given up by its natural parents, then the best that can be done is to allow the child to be raised by a married man and woman as that most closely resembles the natural family. If a child risked not being adopted as above, then I would allow same-sex couples to adopt the child. That seems better for the child than being raised as an orphan.

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  159. Another Mike says:

    @Dave:

    You’re naive about the purposes of marriage.

    The purpose of the state’s involvement in marriage is the children. All the other things being mentioned can be handled outside marriage.

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  160. Another Mike says:

    @Rafer Janders:

    You’re a loon with some very sick and twisted notions of what a family is and isn’t.

    And you are a man without an argument resorting to name-calling.

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  161. michael reynolds says:

    @Pinky:
    I didn’t claim to be on the right side of history, I claimed that expanding rights to include gays is very much in line with US history, and that it was in line with the thrust of the Declaration.

    Both bestiality and incest are unconnected to a line of progress that goes from all white male, to all males, to all straight males and females, to gays. The next step is not sheep-fu-king or child rape.

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  162. Dave says:

    @Another Mike:

    The purpose of the state’s involvement in marriage is the children.

    You state that as fact. I think you might read up on the history of marriage, including English common law and things like dower, jointure etc.

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  163. michael reynolds says:

    @Another Mike:

    As far as I’m concerned we could all get along with civil contracts. But I’m me. Other people like the institution of marriage, and whoever those other people are, they have equal rights to use that institution. The only way to avoid equality in marriage would be to eliminate marriage.

    (He says, secretly hoping Republicans will run on an ‘end to marriage’ plank.)

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  164. Pharoah Narim says:

    @michael reynolds: Actually would be the most equitable decision to make. Having a government license to marriage is inherently inequitable because any license carries criteria that “discriminates”–else there’d be no need for a license. There should be a required framework of subject matter private marriage contracts should cover. But no license. It is also inherently unfair for the government to confer tax incentives to marriage couples that single citizens are ineligible for….simply because they are not married.

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  165. al-Ameda says:

    @Pinky:

    . It’s not a stretch to say, as some on the right have said, first gay marriage then bestiality. You’re saying flat-out that you expect more battles and more ground gained.

    Of course, it’s a short simple step from “between consenting adults” to “between a man or a woman and a consenting adult animal.”

    Conservatives love to run bestiality out there in the ‘slippery slope” argument against gay marriage? Why is that.?

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  166. Rafer Janders says:

    @al-Ameda:

    Because they have a hard time with the notion of consent?

    Also, they seem to be oddly obsessed with bestiality. They certainly give it a lot more thought than I do.

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  167. HarvardLaw92 says:

    @Another Mike:

    Government has a vested interest in societal stability, and marriage encourages that. Married couples, of whatever composition, tend to be more stable and more beneficial to society over the long term relative to single individuals.

    We do not condition access to marriage on either the ability to, or the intention to, procreate, so the children aspect of marriage is, at best, tangential from a legal standpoint.

    What’s more, allowing gays to marry has zero impact on whether Straight Couple A will, or will not, decide to have children, decide to raise those children and / or decide to remain married to one another, so there is no argument to be made that allowing SSM negates any tangential interest that the state may have in promoting that line of thinking.

    Like I said earlier, you are tying yourself in knots trying to find a way to rationalize that “those people” aren’t the same as you, and that’s fine if it’s what gets you through the day, but see it for what it is – it’s YOUR issue, not a legal issue.

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  168. Pinky says:

    @Rafer Janders: @al-Ameda: See above. I addressed that in a reply to Michael.

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  169. Pinky says:

    @HarvardLaw92:

    Married couples, of whatever composition, tend to be more stable and more beneficial to society over the long term relative to single individuals.

    According to European studies, gay couples have 3-10x the divorce rate of straight couples.

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  170. HarvardLaw92 says:

    @Another Mike:

    It should be easy for government to show compelling interest in giving special status to marriage

    Easy, but unnecessary, since the states voluntarily created civil marriage of their own accord and gave it certain benefits & rights unavailable elsewhere.

    None of what I have heard, however, comprises a compelling reason for it to be reserved solely to heterosexual couples. Want to encourage stable environments for children? No problem, marriage does that, WHETHER OR NOT gays are allowed to get married, and therein lies the run for the antis – none of the harms that they are proposing would be realized as a consequence of permitting SSM.

    Straight people, myself included, will still get married. We will still have children. We will still raise those children. We will still (sometimes anyway) grow old together. We will still pass assets to one another in death, and subsequently pass those assets to our heirs.

    All of those laudable potential purposes for creating the legal construct of civil marriage continue unaffected whether gays are allowed to marry or not, so there is no harm to us straight people for the law to address. There is, however, demonstrable harm to gay folks who would like to get married, but are debarred from doing so. The reasons that the state has advanced for harming them have proven woefully insufficient, and to be almost entirely rooted in animus, which is why the states are losing.

    There is certainly a segment of society which is offended at the proposition that gays are as good as they are, but that’s their issue. Being offended isn’t being harmed. They’ll have to find a way to live with disappointment.

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  171. HarvardLaw92 says:

    @Pinky: Link to these studies, please.

    (and prepare to have them sliced apart if they arise from questionable sources)

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  172. Turgid Jacobian says:

    @Pinky: Not responsive: what is the household dissolution rate of married vs unmarried gay couples? Moreover, note that marriage in European countries is qualitatively different–on average they marry much later than we do.

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  173. Another Mike says:

    @HarvardLaw92:

    They’ll have to find a way to live with disappointment.

    I suppose so, if that’s the way it goes down. But I want to say thanks for sharing the ideas which you have taken the trouble to share with me, and the others too.

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  174. anjin-san says:

    @HarvardLaw92:

    None of what I have heard, however, comprises a compelling reason for it to be reserved solely to heterosexual couples.

    And there you have it. Gay marriage has zero impact on my marriage. It has zero impact on my life, except in that I have a bit of added happiness knowing that my gay/lesbian friends (and all g/l folks) are free to live their lives as they see fit.

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  175. Pinky says:
  176. An Interested Party says:

    Pinky: If a high divorce rate is the criteria we are using to judge the validity of marriage, heterosexuals would have been stopped from being allowed to marry a long time ago…

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  177. DrDaveT says:

    @Turgid Jacobian:

    You can simplify your list by deleting 4 and changing 3 to “no longer or not yet competent”

    No, I think there’s an important societal (and therefore governmental) interest in how children get raised that goes far beyond just seeing that they are cared for and treated fairly. Our duty to the incompetent is to treat them with compassion and see that their legal wishes from when they were competent get carried out. Our duty to the not-yet-competent is to improve the future.

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  178. HarvardLaw92 says:

    @Pinky:

    Interesting from an anecdotal standpoint, but problematic, in several ways:

    1) It dates from 2006, a period in which neither country examined (Sweden and Norway) actually had same sex marriage. At the time, both countries offered registered partnerships, which were almost, but not quite, the same thing as actual marriage. Sweden and Norway both moved to actual SSM in 2009, three years after the study was published and 5+ years after the research in question actual began. As far as I can tell, the authors of the study haven’t updated their research to take into account the changed situation.

    2) It contains several differences between its studied groups, which the authors don’t seem to have controlled for – namely that the SSMs studied were self-recruited (always a problematic situation for any study).

    3) It includes several factors other than being homosexual which the authors admit had a pronounced effect on divorce rates – specifically that the SSM couples studied had larger disparities in age relative to the straight cohort, they entered into marriage later in life than the straight cohort, were somewhat more likely to have been previously married than the straight cohort and they were much more likely to have partners external to the country of their native born partners than the straight cohort did.

    It’s interesting, granted, but flawed.

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  179. DrDaveT says:

    @Jenos Idanian #13:

    The move now is to punish people who simply don’t want to publicly embrace gay marriage.

    Damn. Here I’ve been waiting for several days for Jenos to come back and actually cite an instance of someone — anyone — being punished for not publicly embracing gay marriage. Or even proposing a plausible mechanism whereby such a thing could happen. (Especially given that it isn’t actually punishment if you don’t actually suffer any harm…)

    I guess I can see why he chose that point in the thread to bail.

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  180. Pinky says:

    @HarvardLaw92: That’s what the social sciences are like. You go with anecdotal evidence when there’s nothing better, then with flawed studies as available, then with less-flawed studies. There’s never a flawless study, because this is human behavior we’re talking about, and that doesn’t take place in lab conditions.

    There’s no great study of gay divorce rates, because we’re talking about a very new phenomenon. Does that mean that we shouldn’t do anything, because there are no good studies about new things? No. But it does mean that when you say “Married couples, of whatever composition, tend to be more stable and more beneficial to society over the long term relative to single individuals”, you’re probably giving a false impression.

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  181. Tony W says:

    @Pinky:

    But it does mean that when you say “Married couples, of whatever composition, tend to be more stable and more beneficial to society over the long term relative to single individuals”, you’re probably giving a false impression.

    Marriage, as a merger of property necessarily puts impediments in the process of splitting up. There is no doubt, by definition, that it is a stabilizing force for families.

    Why ‘conservatives’ would work cynically to destabilize gay-parent families is for them to defend.

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  182. Pinky says:

    @Tony W:

    There is no doubt, by definition, that it is a stabilizing force for families.

    http://www.ncbi.nlm.nih.gov/pubmed/16579209

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  183. DrDaveT says:

    @HarvardLaw92:

    It’s interesting, granted, but flawed.

    I’m surprised that you (or the study) didn’t mention the difference between the sample population and the married population that seems most relevant with respect to divorce rates — namely, children. It’s practically cliché that many couples who would otherwise divorce do not do so “because of the children”. Since those same-sex partnerships in Norway and Sweden are vastly less likely to have children than married couples are, I would expect a higher divorce rate, other things being equal. “How much higher?” is a legitimate question.

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  184. bill says:

    @C. Clavin: that “auto correct” even had that is interesting!

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  185. Jenos Idanian #13 says:

    @DrDaveT: Sorry my life disappointed you. But I was referring to people who said, in effect, “I won’t interfere with your getting married, just don’t make me participate in it,” and ended up getting sued — like bakers, site owners, and the like. They can believe what they want, but they can’t actually behave as if they hold those beliefs.

    But back to my original point.

    Instituting same-sex marriage is a major change to society. That is not debatable. I also favor it. So the question is how to achieve it.

    Listening to the people here, and a lot of the leaders, the message is that this is so important a change that we don’t want to write it into the law, we don’t want to write it into the Constitution, we want to simply get enough of the right judges in the right courtrooms and have them declare it so. Which leaves it vulnerable to other judges’ whims, lawmakers putting in laws, or even a Constitutional amendment declaring it wrong.

    Not only is this the most vulnerable method (see my aforementioned defenses of slavery and segregation in Dred Scott & Plessy v. Ferguson), it also is probably the way most likely to galvanize the opponents to fight back, harder than ever (See California’s Proposition 8).

    This strikes me as supremely stupid. And while some of the advocates for this approach are, indeed, supremely stupid, not enough of them are. So when obviously intelligent people are doing something that seems supremely stupid, then it deserves closer scrutiny. Perhaps their stated goals and motives aren’t their true goals and motives.

    Since the most obvious consequence of this action is to anger their opponents, then perhaps taht is their goal. To insult and humiliate those people. Which is not only emotionally satisfying on an immature level, but to gloat a bit and assert a level of superiority, and to demoralize the other side for future fights.

    If that is the agenda, and same-sex marriage is simply a tool in a bigger scheme, then that’s a disservice to the issue. And it means that people wishing to marry those of the same sex end up as weapons in that fight — and they deserve better.

    As I noted, when same-sex marriage comes about through some popular expression, it’s more secure. When it’s imposed, it’s fought back against more fiercely.

    And what is gained by going through courts? The only admitted motive is expedience — it’s faster and easier. While that has its appeal, it’s simply not as secure and durable as going through the people.

    Yes, I reject the parallel between same-sex marriage and slavery, but there are some useful parallels. The courts were just fine with slavery; it took Constitutional amendments — passed through Congress and state legislatures — to do that. And the courts supported segregation quite cheerfully until the Civil Rights Act was passed that the tide finally turned.

    THe key definition of the “go through the courts” approach is immaturity. It’s “I want it NOW!,” it’s “I’m getting my way and you’re gonna have to suck it!,” or both. There’s also an element of elitism here — “we can’t trust the stupid proles, we know what’s best and they’ll just have to get used to it.”

    None of which are exceptionally conducive to long-term small-d democracy. Which, I’m starting to suspect, is not a coincidence.

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  186. Tony W says:

    @Pinky: That link was discussed to death about 75 comments ago. Do you really dispute that it’s harder to break up when married than when just living together?

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  187. HarvardLaw92 says:

    @DrDaveT: I left it alone for the simple reason that including it seemed to me to be inviting a resurgence of the “well, they can’t have children, and marriage is only about children” nonsense.

    These studies miss a broader point – marriage isn’t a competition between straight people and homosexuals. It is possible that homosexuals get divorced at a higher rate? Sure, it’s possible.

    It’s also immaterial, because the divorce rate for both cohorts is well, well below 100%. In the end analysis, with SSM society still ends up with more stable married couples than it otherwise would have had without it. End result – society benefits, so let them get married.

    The whole “they get divorced more often” assertion seems to me to be yet another iteration of the “well, we’re still better than they are” defense. It’s little more than people reinforcing their preexisting biases.

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  188. DrDaveT says:

    @Jenos Idanian #13: Thanks for the thoughtful reply, Jenos. I’ll try to respond in kind.

    They can believe what they want, but they can’t actually behave as if they hold those beliefs.

    Nobody has a right to behave in accordance with any old beliefs they might hold. I am prevented from shooting on sight people who use the present tense in historical documentaries. I am, however, not being punished for my beliefs about grammar. Your use of the word punish is what tripped my BS detector. People who operate public businesses but refuse to serve certain people — blacks, Jews, gays, Republicans, whatever — are not being punished when the law tells them to either stop discriminating or get out of that business. You might as well claim that the bully is being punished by not being allowed to beat up the geek and take his lunch money.

    But back to my original point.

    By all means.

    Instituting same-sex marriage is a major change to society. That is not debatable. I also favor it. So the question is how to achieve it.

    Agreed, with the added priviso that the question of when to achieve it is also important.

    Listening to the people here, and a lot of the leaders, the message is that this is so important a change that we don’t want to write it into the law, we don’t want to write it into the Constitution, we want to simply get enough of the right judges in the right courtrooms and have them declare it so.

    Interesting. That’s not what I’m hearing. I don’t think the vast majority of the people you’re citing would mind having it enshrined in law, or even a Constitutional amendment — it’s that they don’t think it’s necessary, and it’s more important to stop the discrimination as soon as possible, in order to minimize the harm.

    That’s the key for me. This isn’t an abstract philosophical discussion. People are being actively harmed, every day, by discrimination that has been legal up to now. Any thought about what would be the smoothest, stablest, most permanent way to make the transition from discrimination to non-discrimination has to be informed by the amount of additional personal, emotional, and economic harm that will be done to individual Americans in the meantime.

    Yes, I reject the parallel between same-sex marriage and slavery, but there are some useful parallels. The courts were just fine with slavery; it took Constitutional amendments — passed through Congress and state legislatures — to do that. And the courts supported segregation quite cheerfully until the Civil Rights Act was passed that the tide finally turned.

    Indeed. But it started with an Executive Order — the Emancipation Proclamation — that probably wasn’t even legal at the time. And the justifications for that were two: a pragmatic reason having to do with winning the Civil War, and a humanitarian reason having to do with the fact that it was intolerable for slavery to continue even one more day. All of the legal details got filled in later, and (as you note) incrementally, over decades. Would American blacks have been better off, in the long run, if Lincoln had not acted so precipitately? If slavery had been phased out slowly, through more traditional legal mechanisms? I suppose one might make an argument along those lines — but you’d need to be awfully damned sure in order to feed a few more generations to the fire, that their descendants might be somewhat better off.

    Obviously, LGBT are not discriminated against to nearly the degree that slaves were, or that blacks in the post-WW2 south were. But they ARE discriminated against, an many and tangible ways that are still legal, as well as many that are not. If you want to argue for an “all deliberate speed” approach to remedying that, you need to have an explicit argument for the harm that you think will accrue if the courts act today, that outweighs all of that ongoing harm to the injured parties.

    To me, it mostly seems that the ‘harm’ will be that a lot of bigots will get their feelings hurt. That doesn’t carry any weight at all for me. Polls show that the people who are most likely to be offended, and to take out that annoyance on LGBT, are dying out. Their children and grandchildren are a lot less bigoted. That suggests to me that there is no downside to acting today on the basis of the Constitution we have; no legacy of resentment that will carry into the future.

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  189. Mikey says:

    @Jenos Idanian #13: I think the main issue is whether denial of marriage to same-sex couples is a violation of the 14th Amendment’s guarantee of equal protection.

    If it isn’t–if this is just an example of societal movement in the direction of allowing it, a gradual change over time–then perhaps you are right and it should be left to the states, and eventually all 50 will allow it, the issue being settled at some point in the future.

    However, if it is a violation of the 14th Amendment, shouldn’t the courts, and eventually the High Court intervene? Do we owe so much deference to “small-d democracy” that we must allow a violation of the Constitution to continue until some indefinite, unspecifiable point in the future? It’s a great positive of our Constitution-based system that clear violations of rights can be resolved through Constitutionally-authorized judicial action, rather than having to persist for years, awaiting resolution through a legislative process wherein the rights of minorities are subject to the majority’s veto.

    That’s the motivation behind pushing this through the courts. Would it be seen by some as more legitimate, were the legislative process used exclusively? Without a doubt, but we are not required to allow Constitutional violations to persist indefinitely to satisfy them. The Constitution allows the judicial remedy.

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  190. Grewgills says:

    @HarvardLaw92:

    If you’d like a reading list of cases wherein they lay out that reasoning, to better understand what I’m trying to explain to you, let me know.

    I’d like it. I know some of it, but it would be nice to be able to lay out the roadmap more fully when having this argument in other places.
    @HarvardLaw92:
    and you’ve already done so. Thanks

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  191. anjin-san says:

    @Jenos Idanian #13:

    It’s “I want it NOW!

    Yes. Now. The time for justice is always now. How many gay/lesbian folks should live their lives as second class citizens and die heartbroken, because they were not able to marry the person they chose? How many of them should have to deal with the nightmare of family interference when they are in the hospital and a parent/sibling who never accepted the fact that they are gay prevents them from seeing their loved one?

    There is a group of people that is suffering a horrible injustice here, and it is not wedding photographers.

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  192. Grewgills says:

    @bill:

    “showering of benefits”

    Really? Allowing homosexual couples the same benefits as hetero couples is a “showering of benefits” we can’t afford? There are a hell of a lot more hetero couples. If we can’t afford this “showering of benefits” for homosexuals, then we clearly can’t afford it for heterosexual couples. I guess that means you don’t think anyone deserves this “showering of benefits”. That, or you have some special reason why homosexuals don’t deserve the same benefits as heterosexuals. Can you give one that doesn’t devolve to bigotry?

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  193. Grewgills says:

    @Pharoah Narim:
    Do you really believe that homosexual couples haven’t had to worry about their personal safety in the US? Do you really not see the parallel between this struggle and the struggle that lead to Loving v Virginia?

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  194. Jenos Idanian #13 says:

    @DrDaveT: To me, it mostly seems that the ‘harm’ will be that a lot of bigots will get their feelings hurt. That doesn’t carry any weight at all for me.

    Personally, I tend to prefer to insult idiots, all other things being equal. But in this case, there’s a price for insulting idiots — it drives them to double down and fight back even harder.

    In this case, reducing the odds of such kickback come at the price of trusting the democratic process and showing faith in my fellow citizens When that’s the case, I can feel pretty good about a possible delay in victory, especially when that victory will be more secure and lasting.

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  195. Jenos Idanian #13 says:

    @anjin-san: OK, we’ve all noticed your ferocious stamping of your feet, and we’re all terribly impressed. Now why don’t you go back to your nap?

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  196. Jenos Idanian #13 says:

    @Grewgills: We’re coming up on the 48th anniversary of Loving v. Virginia. And if you’ll forgive the crass language, our society has evolved considerably since then — nowadays, one gets a hell of a lot more of public condemnation for saying “fag” than being a “fag.”

    Which 1) still surprises me a little, and 2) I greatly approve of.

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  197. anjin-san says:

    @Jenos Idanian #13:

    Shorter Jenos – “I’ve got nothing”

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  198. Jenos Idanian #13 says:

    @Mikey: I think the main issue is whether denial of marriage to same-sex couples is a violation of the 14th Amendment’s guarantee of equal protection.

    The 14th Amendment was passed in 1968. And for nearly all that time, the notion that it applied to people who wanted to marry someone of the same sex was considered absurd. So we’re talking about a huge change.

    But let’s get a bit meta and intellectual here. (I”ll try to fake it.) If taken to an extreme, the 14th essentially nullifies the 10th Amendment — “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Because the argument you’re using is saying that all rights are federal rights, and any difference in any state law can be nullified under the 14th Amendment.

    Earlier, I cited state laws governing marriage and matters of consanguinity, age of consent, and numbers of marriages. If I can marry my 2nd cousin in other states, but not in my own, would that not constitute a violation of our 14th Amendment rights?

    Or, away from marriage, how about the death penalty? How can one state deprive me of my right to life, but another can’t? Aren’t my rights to “equal treatment” being violated?

    And let’s not even go into the “full faith and credit” clause, ‘cuz that’s a whole ‘nother can of worms…

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  199. Another Mike says:

    @Mikey:

    I think the main issue is whether denial of marriage to same-sex couples is a violation of the 14th Amendment’s guarantee of equal protection.

    Yes, but in order to get to this point it took a serious of court decisions separating sex from procreation, and the discovery of a domain of privacy in which the moral code of the community had no validity. Those once condemned by Christian morality are now the ones condemning Christian morality as bigots and moral dinosaurs. Interesting how that turnabout came to be.

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  200. Jenos Idanian #13 says:

    @anjin-san: We get it, annie. You want credit for demanding the perfect RIGHT NOW, and you don’t want to deal with realities. You got your credit. You want a cookie, too? Sorry, fresh out.

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  201. anjin-san says:

    @Jenos Idanian #13:

    nowadays, one gets a hell of a lot more of public condemnation for saying “fag” than being a “fag.

    Perhaps you should ask the gay folks who are being denied equal rights what they think. Knowing quite a few of them myself, I think I can safely say that they think being denied marriage equality is a really (really!) big deal. I think most of them would say “I don’t give a shit if you call me a fag, just don’t tell me how to live my life”

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  202. Jenos Idanian #13 says:

    @anjin-san: Fine, here’s your cookie. Sorry it’s not gluten-free.

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  203. anjin-san says:

    @Jenos Idanian #13:

    and you don’t want to deal with realities.

    Look at the progress made in achieving marriage equality in the last five years, much of it via the court system, and get back to me on who is, and who is not dealing with reality. Even folks in the bay area are stunned with how far we have come, and how quickly it has happened.

    You want credit

    Nope. This is not about me in any way, shape, or form. You are not able to understand that because politics to you is strictly a game of partisanship and point scoring. Being passionate about social justice is simply not something that makes sense to you.

    I’ve known a lot of gay folks who are dead now. They lived their entire lives as second class citizens. In America. What a tragedy. What an utterly intolerable situation.

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  204. anjin-san says:

    @Jenos Idanian #13:

    Yes, yes, you have nothing. You’ve already made that clear.

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  205. Jenos Idanian #13 says:

    @anjin-san: I’m actually having a mature discussion with others. You’re trying to throw a temper tantrum, which you think you’re cunningly disguising as Righteous Indignation And Fury.

    And I thought you were ignoring me? Or do you want to give me more lectures on what “unmarked” means?

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  206. Mikey says:

    @Jenos Idanian #13:

    The 14th Amendment was passed in 1968 [I assume you meant 1868 – M.]. And for nearly all that time, the notion that it applied to people who wanted to marry someone of the same sex was considered absurd. So we’re talking about a huge change.

    Yes, it’s a huge change, although probably not so huge as it would have been even 20 years ago. But the hugeness of the change isn’t relevant in the context of the equal protection argument. Just because nobody had raised the issue in 1868, or 1968, doesn’t mean a protected right did not exist.

    But let’s get a bit meta and intellectual here. (I”ll try to fake it.) If taken to an extreme, the 14th essentially nullifies the 10th Amendment — “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Because the argument you’re using is saying that all rights are federal rights, and any difference in any state law can be nullified under the 14th Amendment.

    Note the phrase “nor prohibited by it to the States.” The 14th Amendment is the way the Constitution prohibits the states passing laws that violate equal protection. The 10th is not implicated here.

    Earlier, I cited state laws governing marriage and matters of consanguinity, age of consent, and numbers of marriages. If I can marry my 2nd cousin in other states, but not in my own, would that not constitute a violation of our 14th Amendment rights?

    No, because in that instance the state has a justification for making the distinction that is not mere animus.

    Or, away from marriage, how about the death penalty? How can one state deprive me of my right to life, but another can’t? Aren’t my rights to “equal treatment” being violated?

    Again, an instance where states have demonstrated valid rationales for the difference.

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  207. Jenos Idanian #13 says:

    @Mikey: Thanks for the fix on the year. The heat’s a little low, and my fingers occasionally slip. Shoulda caught it, but I didn’t.

    But what are the state rationales for coming to different conclusions on marriage laws? Laws governing consanguinity and age of consent are based on biology, and that science doesn’t recognize state lines.

    Are they basing it on “cultural” differences? Are they saying that “our 16-year-olds are different from 16-year-olds in other states?”

    I’m not trying to bait you here; I genuinely don’t know. I’m no expert on anything, just a layman with a very bizarre set of interests and truly scattershot areas of expertise (almost none of which I can give credentials in).

    Do you know what these rationales are? And would a federal ruling on gay marriage open up any differing state standards on marriage open up those laws to similar challenges?

    To keep it simple, I’ll limit the question to consanguinity. We tend to outgrow limits on age of consent, and I think in most cases the time such a case would take to wend through the courts would be long enough to render the matter moot before it concludes, and I believe that people who have reached their legal numbers of marriages can get around that by going to another state (I’m suspecting New Jersey and Nevada), getting married there, returning home,a nd trusting the Full Faith & Credit Clause to put the matter to rest.

    But the consanguinity thing is something that one doesn’t outgrow.

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  208. anjin-san says:

    @Jenos Idanian #13:

    I’m actually having a mature discussion with others. You’re trying to throw a temper tantrum

    I’m sure you think you have come up with a clever new tactic here :) When you tire of that you will morph into munchbox and return to a voice much closer to who you actually are.

    In the meantime you present arguments that are simply an updated version of “slow down there boy, we ain’t turning the world upside down for you. There ain’t been a lynching ’round here for three years now, what the hell else do you want”?

    Your concern trolling is fooling no one.

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  209. Jenos Idanian #13 says:

    @anjin-san: That does it.

    I’m taking your cookie back.

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  210. anjin-san says:

    This is an interesting map, literally a graphic illustration of how quickly marriage equality for all is becoming a reality. The Supreme Court is already telegraphing which way they are headed.

    So where is the resistance coming from? Clearly, marriage equality will be nationwide soon, perhaps very soon.

    There are the hardcore bigots. Well, they are, at least to some extent, dying off. Sadly, bigotry is often multi-generational. There is the right wing media machine. It’s a good issue for them, plenty of outrage to both generate and exploit. They are in the fear and anger business, and sadly, business is good.

    There are those who oppose marriage equality on religious grounds. I have good news for them, they will not be forced to marry a member of the same sex. If their religious sensibilities are offended, well, that is too bad. Butcher shops offend my religious sensibilities. I deal with it by not patronizing them, not by telling other people they have to live their lives as I see fit.

    And how about the erstwhile bakers, photographers, and other service providers who are offended by gay marriage? Well, tough. If you work with the public, you work with the public as a whole, not with the folks you cherry pick because you like them. Restaurant managers can’t tell black folks they are not welcome. Neiman Marcus can’t tell people in cheap shoes to get out and do their shopping at Wal-Mart. EMT’s are not allowed to refuse treatment to Muslims if they don’t like Muslims. And so on.

    When I worked in the restaurant business, I waited on all sorts of people who I would never have anything to do with in my private life. I did not get to say “I am only waiting on well dressed, articulate, educated people, rock stars, good tippers and attractive women.” I served meat, seafood, and poultry, which I would never consume myself, and I find completely disgusting. I did things that were not very comfortable for me, because they were part of the job. No one put a gun to my head and forced me to become a bartender.

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  211. anjin-san says:

    @Jenos Idanian #13:

    I’m taking your cookie back.

    We are all very impressed by the maturity you are showing here. Seriously, pat yourself on the back a hundred times.

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  212. DrDaveT says:

    @Jenos Idanian #13:

    But in this case, there’s a price for insulting idiots — it drives them to double down and fight back even harder.

    No, it doesn’t. I addressed this in the part of my post that you didn’t quote. The pushback crowd is dying out. Their kids — unlike (say) the kids of racists in 1960, or sexists in 1900 — do not agree with them about this issue. You are not going to alienate a generation of bigots and galvanize them to anti-LGBT action, by doing the right thing.

    So do the right thing. Immediately.

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  213. Jenos Idanian #13 says:

    @anjin-san: I don’t know if you don’t see it, if you can’t see it, or won’t see it.

    You’re talking big picture. You’re fixated on the end, and anyone who points out that there might be troubles getting there is OBVIOUSLY A HATER AND A BIGOT AND JUST CONCERN TROLLING.

    That wonderful map you linked to? Interesting, but it has one huge flaw. It shows the progress towards same-sex marriage purely in terms of lawsuits. As I noted, twelve states did it through some sort of public referendum. But that distinction is utterly ignored. They are lumped in with the other states where it was won through courts.

    And the states where it’s being fought? No mention at all of legislative or referendum efforts. Zero.

    Same blind spot you have.

    You’re not interested in the goal. You just want to be the hero.

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  214. Jenos Idanian #13 says:

    @DrDaveT: You want credit for fighting the good fight. There’s nothing wrong with that. Unless you take it to annie’s level.

    I’m more interested in winning. And if that means not fighting in ways that I don’t think will help win, and win definitively, then I’ll avoid the fights.

    And I don’t give a crap about credit.

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  215. anjin-san says:

    @Jenos Idanian #13:

    They are lumped in with the other states where it was won through courts.

    So what? If you win by a touchdown, a field goal, or a safety, you still win. You want to argue endlessly about the “right way” to win. It’s as pointless as your long and winding diversions into semantics on any number of topics. You don’t get to decide what the “right way” is. This is not about you.

    You just want to be the hero.

    Yes, you’ve invented yet another position for me that has nothing to do with reality. More of your newfound maturity?

    then I’ll avoid the fights.

    No problem. Just don’t tell others how they should do things. Once again, for a self appointed champion of personal freedom, you spend a great deal of time telling others how they should behave.

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  216. Jenos Idanian #13 says:

    @anjin-san: My, project much?

    “Yes, you’ve invented yet another position for me that has nothing to do with reality.”

    Like you calling me a “concern troll.”

    “Just don’t tell others how they should do things.”

    Like you’re telling me how to do things?

    “More of your newfound maturity?”

    Look at your opening remark here: “Sorry. No one gets to decide a group of people are second class citizens because they don’t like them. That pesky Constitution again…” Fine demonstration of maturity there, annie.

    My preferred approach won nice and peacably in 12 states. Your jihad set off Proposition 8, among other fun situations.

    But if that’s how you need to compensate for… other shortcomings, be my guest.

    But it’d be better for all concerned, I think, if you just bought a sports car or got hair plugs or something.

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  217. DrDaveT says:

    @Jenos Idanian #13:

    You want credit for fighting the good fight.

    Huh? Could you unpack that a little? I have no idea what (or whom) you’re responding to here. I couldn’t care less about credit or blame; I want people to be treated equally under the law.

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  218. Rafer Janders says:

    @Another Mike:

    Yes, but in order to get to this point it took a serious of court decisions separating sex from procreation,

    People have been having sex without procreation for as long as people have been having sex. It didn’t take a series of court decisions in late 20th century America to bring that about….

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  219. anjin-san says:

    @Jenos Idanian #13:

    But it’d be better for all concerned, I think, if you just bought a sports car or got hair plugs or something.

    My, you do seem determined to make this personal. Well, I already have a sports car, modest by sports car standard, but enough to get me a little respect when I am around professional drivers. When it comes to cars, there are basically four kinds of guys. Guys with nice cars, guys with sensible cars, guys with crappy cars, and guys who take the bus. Which kind of guy are you?

    As for hair plugs, sorry, but all my hair is all still attached. It’s actually pretty funny that you would try to take that particular shot at me. I alway thought my my hair was pretty average, but since I started going gray, it has taken on rock star proportions. Younger women call me “the silver fox” and gay men in particular are all over it. So you are going after something that has actually improved as I’ve moved into my AARP years. How about you? Still rocking the pony tail?

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  220. Grewgills says:

    @Jenos Idanian #13:

    But in this case, there’s a price for insulting idiots — it drives them to double down and fight back even harder.

    How exactly will they fight harder? Why do you think the aftermath of this will fair worse than the aftermath of Loving v Virginia? Do you think Loving v Virginia was wrongly decided?

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  221. Another Mike says:

    @Rafer Janders: It didn’t take a series of court decisions in late 20th century America to bring that about….

    Sure, but woman have been aborting babies since forever. It did not take a court decision to bring that about. I think you fail to comprehend the sense of what I was saying.

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  222. Mikey says:

    @Jenos Idanian #13: The big difference between same-sex marriage and the marriage of siblings or first cousins is the latter results in an actual risk. Same-sex marriage opponents have tried to establish it does as well, but have so far failed. The rationales they advance invariably reduce to thin veneers for animus.

    As far as age of consent, we’re talking about minors and the rules are a bit different for them. Plus the state can advance good rationales for being more restrictive if they wish.

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  223. Jenos Idanian #13 says:

    @anjin-san: Wow, I missed one of your selective quotes. But let’s go back and pick this one of yours apart, shall we?

    You quote me:

    then I’ll avoid the fights.

    But the full sentence was:

    And if that means not fighting in ways that I don’t think will help win, and win definitively, then I’ll avoid the fights.

    You actually disagree with that sentiment? Why?

    Oh, because I espoused it. I triggered your knee-jerk reflex.

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  224. Jenos Idanian #13 says:

    @Mikey: The big difference between same-sex marriage and the marriage of siblings or first cousins is the latter results in an actual risk. Same-sex marriage opponents have tried to establish it does as well, but have so far failed. The rationales they advance invariably reduce to thin veneers for animus.

    Oh, I agree, the rationales put forth are usually hogwash. To take it further, I also have some handy arguments when they try to put up analogies saying that “if we allow gay marriage, how do we know that the next time it won’t be pedophilia/bestiality/polygamy?”

    But you’re making a flawed argument here. You seem to think that just because a law is irrational means it’s somehow inherently legally invalid.

    Let’s not get into particulars here, but I can argue quite thoroughly that most proposed gun-control laws are irrational. And, in fact, I do, when such laws are proposed. But those arguments are only appropriate when one is opposing the passage of such laws, or when one is arguing to repeal those laws. If one is arguing before a court to strike down such laws, the court would, in all likelihood, say “so what? Is that all you got? If so, case dismissed.” (But in a far classier manner.)

    In that circumstance, you bring out the 2nd Amendment. Because simply saying “it’s stupid” doesn’t matter to a court. They aren’t in charge of judging what’s stupid or what’s not; that’s the job of Congress, or whatever legislative body is at hand. They’re in charge of what’s Constitutional, what’s consistent with other existing laws. Courts don’t care about what’s smart, they care about what’s consistent.

    Go into court and argue that the other guy should lose because he’s STUPID and a BIGOT and a LIAR and a HATER, and (if they have any judicial integrity) the judge will look down at you and say “so? They can still be in the right in this particular case. What do you have that shows that they’re also legally wrong?”

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  225. Jenos Idanian #13 says:

    @Mikey: And yeah, the “age of consent” one doesn’t really work in this context, but I would be curious to hear the argument that exempts it from the same principle as same-sex marriage. What about it makes it an acceptable place for the states to have their own say, but not in the case of same-sex marriage? Could the federal government set a national age of consent for marriage, and impose it on the several states?

    I’ve heard about the Full Faith & Credit Clause to get around it — the couple goes to a state where the ages are different, then go back home — and DOMA specifically addressed that for same-sex marriage, but DOMA’s now dead.

    It’s a hell of a convoluted mess…

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  226. Mikey says:

    @Jenos Idanian #13:

    Go into court and argue that the other guy should lose because he’s STUPID and a BIGOT and a LIAR and a HATER, and (if they have any judicial integrity) the judge will look down at you and say “so? They can still be in the right in this particular case. What do you have that shows that they’re also legally wrong?”

    There’s a difference between “the other guy is a bigot” and “the basis of law X is bigotry.” You’re right, arguing before a judge that individual X or group X are bigots won’t hold much sway if the law in question can be justified to the court’s satisfaction. It’s when the justification of a law can be distilled down to simple animus that Constitutional issues arise.

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  227. anjin-san says:

    @Jenos Idanian #13:

    Ah, now you don’t want to talk about cars and hair after you brought them up? I can’t imagine why :)

    At any rate, I think I saw enough of your diva routine yesterday. But by all means, keep flailing away if you are getting something out of it.

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  228. Jenos Idanian #13 says:

    @Mikey: There’s a difference between “the other guy is a bigot” and “the basis of law X is bigotry.”

    OK, now we’re getting somewhere. And thank you for not getting discouraged by the twittery.

    “Bigotry” is an ambiguous term. I’m no lawyer here, but I read WAY MORE than is healthy, and it’s my understanding that “bigotry” in and of itself isn’t illegal. It has to have more elements than simply bigotry. It has to have a negative consequence (and that includes “lack of a positive consequence,” which, as I recall, was the justification for the whole original “grandfather clause” gambit on things like literacy tests), and it has to be based on a discrimination based on protected grounds. For another, not-marriage example, the rights of people convicted of certain crimes to vote or possess guns — that’s another thing set by the states, and another case where one could argue for relief under the 14th Amendment.

    So we end up with the conflict: does marriage fall under the 10th Amendment, and an exclusive power for the states, or is it governed by the federal government, and as such subject to federal intervention?

    I really try to look at the big picture, and not go ad hoc on issues. I don’t see very many issues so important that I get into my head to argue “this is so important that we have to get it right, no matter how we do it or how many principles we smash and how many bad precedents we set.” And, quite frankly, I don’t put same-sex marriage as so big that we need to overturn a couple centuries of precedent.

    IF the same-sex marriage issue had kept failing in popular votes, then I’d have more sympathy for the “get it by any way we can” side. But it was working quite nicely, if a bit slowly, through that process. And in those states, it was settled. There are occasional stirs to repeal those laws, but they never go anywhere.

    The biggest and most bitter fights were in states where the courts put it into place. California and Massachusetts are the ones I recall most vividly, but I’m sure if I did a little more digging, I could find more examples.

    And what do these fights achieve? Well, apart from the psychological aspects I cited above, it also occurs to me that those fights serve as rallying cries. They become excuses for big fund-raising on both sides, let the rabble-rousers whip up their audiences and engage in Mass Hate on the other side, and in general generate a whole lot of heat.

    While I occasionally appreciate (and even engage in) a little trolling, I don’t think that it’s a healthy thing on a national level. And I also hold absolutely no position of authority or power or influence, for which I thank God every day. So if given the choice between backing the method that gets it right NOW with a lot of fighting and drama and ugliness, or the one that takes a little longer but keeps things a lot calmer and results in a more secure victory, I’ll go for the latter.

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  229. Grewgills says:

    @Jenos Idanian #13:
    Again, how are the anti marriage equality going to fight harder after they lose in the courts?
    Do you have any reason whatsoever that the aftermath of this will play out worse than the aftermath of Loving?
    In the absence of a court decision how long do you think it would take for marriage equality to become the law throughout the bible belt?
    Should African American people have waited for interracial marriage to have been voted into place rather than taking it to court?
    You have avoided these questions like the plague on more than one thread now. I am beginning to think it is because you don’t have good answers.

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  230. Jenos Idanian #13 says:

    @Grewgills: 1) Oh, I dunno. Replace the judges? Get anti-gay-marriage legislators elected? Push a state constitutional amendment?

    Basically, anything besides the “we fought the good fight, and we lost. Screw it.” attitude demonstrated in 12 states.

    2) I’d rather not find out. I still don’t like how Prop 8 played out.

    3) 2 years, 5 months, six days, seventeen hours, and three minutes. (I’ll skip on the seconds.)

    But flippant answer to stupid question aside, yes, probably a little longer. Doing things right usually takes a little longer than taking the most expedient method.

    4) The existing laws were clear about racial discrimination. So the parallel fails.

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  231. Anjin-San says:

    Hmm. Obamacare was passed into law by way of the legislative process. The people spoke through their elected representatives.

    And conservatives have accepted it, because it was done the right way, not by judicial fiat.

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  232. Jenos Idanian #13 says:

    @Anjin-San: Bullshit parallel. Almost no one is arguing that it was passed improperly, and they’re going after it through legislative means.

    But since you brought it up, is it a tax (like the Supreme Court says it is) or is it not a tax (like the backers argued)? And what happened to “if you like your doctor/plan, you can keep your doctor/plan?”

    It’s a lot easier to keep your story straight if you just tell the truth…

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  233. Jenos Idanian #13 says:

    @Anjin-San: Let’s try that again: ObamaCare wasn’t passed by someone saying “hey, guess what we just found in the Constitution! Nobody thought it was there for a hundred years, but we just looked and guess what? It’s there! It’s been there all the time!”

    Much like Roe v. Wade was “discovered” in the “penumbras” of an “implied right…”

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  234. Tony W says:

    I feel like Jenos is arguing for patience. For Justice Delayed. Tell me I’m wrong.

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  235. Tyrell says:

    @michael reynolds: I would say that the next step will be polygamist wanting the right to marry as many as they want and have all of them be entitled to all the benefits and entitlements that go with marriage. But the last thing many of the polygamists want is some kind of spotlight on their lifestyles, organization, power, influence, and other issues that some legal action could bring. They want to stay hidden, under the radar, and out of sight. Getting polygamy into federal courts could have judges asking some questions and snooping around that the polygamy groups definitely would not want.

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  236. Pharoah Narim says:

    @Grewgills: Who said that? Did any same sex couple getting a marriage licesnse or attempting to get one end up getting killed? Have homosexuals citizens had to plan their travel by day and plot out where they could stop for bathroom and food breaks as matter of personal safety? Have you ever seen a post card with a homosexual swinging from a tree surrounded by crowds of smiling heterosexuals? For that matter, have you ever listened to the audio taped interviews with some of the last surviving emancipated slaves? What they describe is savagery.

    There is nothing happening to any group of citizens today that even darkens the door step of what took place in those eras. None…and that’s a good thing. I take exception to those who try to piggy back their cause onto Slavery, Jim Crow, Native American treatment, or the Holocaust. There’s no cause for that sort of hyperbole. We are at the point where generational amnesia is setting in so people are forgetting the scale and intensity of the nightmare those peoples were put through. An apt comparison for SSM IMO is women getting the right to vote at the turn of last Century. The fact that SSM has advanced as far as it has in such short of time is pretty much proof that it is driven by affluent whites. Too bad they aren’t equally as interested in better schools for middle and lower class children, more middle class jobs, reforming the criminal “justice” system for the poor, or a litany of other initiatives that non-monied minorities have to burn down property to get people to rethink. At least my neighbor is able to make an honest woman out of her girlfriend though.

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  237. anjin-san says:

    @Jenos Idanian #13:

    Bullshit parallel

    Nope. Let’s look at your own words, the core of the argument you have been making so laboriously on this thread:

    It’s been my observation that in states where the electorate is allowed to have its say, through legislation or referendum, the results tend to be a lot less contentious than when the electorate is shut out of the process

    In the case of Obamacare, the electorate had their say. Their elected representatives passed Obamacare, and the President, also elected, signed the bill into law. The electorate was not “shut out”, and nothing was “imposed” by the judicial system.

    In spite of this, conservatives have fought Obamacare with the passion and determination of the Russians defending Stalingrad. They don’t give a crap that the legislation was passed by duly elected representatives of the people with no impropriety. They don’t like it, and they will lie, cheat, steal, and hold votes in the house till the sun grows cold to see it gone.

    So, stomp your feet and tell us how much you hate Obamacare. Bring up a hundred irrelevant points such as Roe v. Wade. Make all the noise you want, hold your breath until you turn blue.

    Your original argument is toast. Have a nice day.

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  238. Grewgills says:

    @Jenos Idanian #13:
    1) is done, done and done near a decade ago when the Republicans were pushing anti marriage equality ammendments at the state level to drive conservatives to the polls. If that is all you have on that, then you have pretty much nothing.
    2) What is the lasting fallout of prop 8? Marriage equality is sailing along just fine in CA. Do you have any evidence to the contrary?
    3) BS. If you think Alabama, Mississippi, Texas, etc are withing 5 years of legalizing marriage equality sans judicial action I have a unicorn ranch to sell you.
    4) The law since Windsor is clear on marriage equality, so the parallel to Loving is apt.
    Your argument seems to boil down to bigots will get bent out of shape and may act out, so we should delay justice for homosexuals. Is there anything more to it than that?

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  239. Grewgills says:

    It’s been my observation that in states where the electorate is allowed to have its say, through legislation or referendum, the results tend to be a lot less contentious than when the electorate is shut out of the process

    So, in states where the population supports civil rights, civil rights face less resistance? That is one step away from this.

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  240. Grewgills says:

    @Pharoah Narim:
    Homosexuals regularly face violence. It isn’t of the scale of Jim Crowe, but that isn’t the parallel I drew. How is this different than Loving v Virginia as a civil rights issue?

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  241. al-Ameda says:

    @Jenos Idanian #13:

    Let’s try that again: ObamaCare wasn’t passed by someone saying “hey, guess what we just found in the Constitution! Nobody thought it was there for a hundred years, but we just looked and guess what? It’s there! It’s been there all the time!”

    For the record: ACA was not a “found right” it was legislation (hence, “Affordable Care Act”) passed by Congress, not a “found right” the result of a Supreme Court decision.

    You’re welcome.

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  242. Pharoah Narim says:

    @Grewgills: It’s not…and is and apt comparison.

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