September 4, 2014

As predicted, the 7th Circuit Court of Appeals panel has struck down the Wisconsin and Indiana bans on same-sex marriage.

Here's my blog post on the oral argument — which was only 9 days ago. The opinion is written by Judge Richard Posner, who at the oral argument was audibly disgusted by the efforts to justify the ban.

Here's a PDF of today's opinion, which I'm just starting to read. I can see that Posner puts his distinctive imprint on the standard equal protection doctrine:
The difference between the approach we take in these two cases and the more conventional approach is semantic rather than substantive. The conventional approach doesn’t purport to balance the costs and benefits of the challenged discriminatory law. Instead it evaluates the importance of the state’s objective in enacting the law and the extent to which the law is suited (“tailored”) to achieving that objective. It asks whether the statute actually furthers the interest that the state asserts and whether there might be some less burdensome alternative. The analysis thus focuses not on “costs” and “benefits” as such, but on “fit.” That is why the briefs in these two cases overflow with debate over whether prohibiting same-sex marriage is “over- or underinclu- sive”—for example, overinclusive in ignoring the effect of the ban on the children adopted by same-sex couples, under- inclusive in extending marriage rights to other non- procreative couples. But to say that a discriminatory policy is overinclusive is to say that the policy does more harm to the members of the discriminated-against group than necessary to attain the legitimate goals of the policy, and to say that the policy is underinclusive is to say that its exclusion of other, very similar groups is indicative of arbitrariness.
ADDED: Indiana claimed its interest was based on the biological reality that only heterosexual sex produces babies.
The state treats married homosexuals as would-be “free riders” on heterosexual marriage, unreasonably reaping benefits intended by the state for fertile couples. But infertile couples are free riders too. Why are they allowed to reap the benefits accorded marriages of fer- tile couples, and homosexuals are not?

The state offers an involuted pair of answers, neither of which answers the charge that its policy toward same-sex marriage is underinclusive. It points out that in the case of most infertile heterosexual couples, only one spouse is infertile, and it argues that if these couples were forbidden to marry there would be a risk of the fertile spouse’s seeking a fertile person of the other sex to breed with and the result would be “multiple relationships that might yield unintentional babies.” True, though the fertile member of an infertile couple might decide instead to produce a child for the couple by surrogacy or (if the fertile member is the woman) a sperm bank, or to adopt, or to divorce. But what is most unlikely is that the fertile member, though desiring a biological child, would have procreative sex with another person and then abandon the child—which is the state’s professed fear.

The state tells us that “non-procreating opposite-sex couples who marry model the optimal, socially expected behavior for other opposite-sex couples whose sexual intercourse may well produce children.” That’s a strange argument; fertile couples don’t learn about child-rearing from infertile couples. And why wouldn’t same-sex marriage send the same message that the state thinks marriage of infertile heterosexuals sends—that marriage is a desirable state?
AND: Posner makes Indiana's argument sound ludicrous:
... Indiana’s government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of governmental encouragement of marriage through a combination of sticks and carrots) to marry, but that gay couples, unable as they are to produce children wanted or unwanted, are model parents—model citizens really—so have no need for marriage. Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.
MORE: Wisconsin argued that its interests were: 1. tradition, 2. concern about the unforeseen consequences of change, 3. a desire to leave the question to democratic decisionmaking, and 4. concern about damaging marriage. The most serious of the 4 arguments is tradition, and Posner vividly articulates why tradition per se means nothing:
There are good traditions, bad traditions pilloried in such famous literary stories as Franz Kafka’s “In the Penal Colony” and Shirley Jackson’s “The Lottery,” bad traditions that are historical realities such as cannibalism, foot-binding, and suttee, and traditions that from a public-policy standpoint are neither good nor bad (such as trick-or-treating on Halloween). Tradition per se therefore cannot be a lawful ground for discrimination—regardless of the age of the tradition. Holmes thought it “revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.” Oliver Wendell Holmes, Jr., “The Path of the Law,” 10 Harv. L. Rev. 457, 469 (1897). Henry IV (the English Henry IV, not the French one—Holmes presumably was referring to the former) died in 1413. Criticism of homosexuality is far older. In Leviticus 18:22 we read that “thou shalt not lie with mankind, as with womankind: it is abomination.”...

Wisconsin points out that many venerable customs appear to rest on nothing more than tradition—one might even say on mindless tradition. Why do men wear ties? Why do people shake hands (thus spreading germs) or give a peck on the cheek (ditto) when greeting a friend? Why does the President at Thanksgiving spare a brace of turkeys (two out of the more than 40 million turkeys killed for Thanksgiving dinners) from the butcher’s knife? But these traditions, while to the fastidious they may seem silly, are at least harmless. If no social benefit is conferred by a tradition and it is written into law and it discriminates against a number of people and does them harm beyond just offending them, it is not just a harmless anachronism; it is a violation of the equal protection clause....

The state elaborates its argument from the wonders of tradition by asserting, again in its opening brief, that “thousands of years of collective experience has [sic] established traditional marriage, between one man and one woman, as optimal for the family, society, and civilization.” No evidence in support of the claim of optimality is offered, and there is no acknowledgment that a number of countries permit polygamy—Syria, Yemen, Iraq, Iran, Egypt, Sudan, Morocco, and Algeria—and that it flourishes in many African countries that do not actually authorize it, as well as in parts of Utah. (Indeed it’s been said that “polygyny, whereby a man can have multiple wives, is the marriage form found in more places and at more times than any other.” Stephanie Coontz, Marriage, a History: How Love Conquered Marriage 10 (2006).) But suppose the assertion is correct. How does that bear on same-sex marriage? Does Wisconsin want to push homosexuals to marry persons of the opposite sex because opposite-sex marriage is “optimal”? Does it think that allowing same-sex marriage will cause heterosexuals to convert to homosexuality? Efforts to convert homosexuals to heterosexuality have been a bust; is the opposite conversion more feasible?
Posner distinguishes tradition from morality and notes that neither Indiana nor Wisconsin asserted morality as a ground for rejecting same-sex marriage. Morality is the state interest that dare not speak its name.

85 comments:

n.n said...

Posner needs to explain selective exclusion of other dysfunctional and unproductive behaviors. With technological progress, progressive morality, and especially with the normalization of elective abortion, there are few if any behaviors and unions which he can logically oppose. Posner needs to explain how policies based on selective (i.e. arbitrary or ambiguous) principles can avoid creating moral hazards.

Unknown said...

Wait for the outrage.

Jason said...

I have full confidence that Judge Posner gave both sides of the argument an equal, full and fair hearing, and applied the law and only the law to the facts and only the facts.

Not.

Sam L. said...

Overriding the popular vote once more.

rhhardin said...

Moron judges fit the court well.

Anonymous said...

Lawyers made up Rational Basis out of whole cloth. There is not one word in any US law, especially not in the supreme US law, that says that laws must have a Rational Basis to advance a Legitimate Governmental Interest. Absolutely none.

It is absurd, and obscene, and ridiculous, that the people's representatives need to tell a bunch of loser idiots why they passed a law. Who cares why they passed it? It doesn't matter. The people's representatives passed the law, and the lawyers should go thank God that they didn't pass a law consigning anyone who practices law to 50 years hard labor.

I say this as someone who opposes this law. I think it's a bad law, and that it's discriminatory, and the people who passed it probably have incorrect opinions about gay people. But none of that matters. The way you address that problem is by voting those people out, and passing a different law.

I think that our hostess, and people who studied the same things she did, should have absolutely no power over our laws, unless someone elects them to office.

And what's amazing is that that's not the way our "democratic republic" works.

Anonymous said...

You get this absolutely bizarre spectacle of the people needing to justify themselves to morons. So they have to sputter about biology and such.

It doesn't matter why the people didn't want to issue marriage licenses to two people of the same sex. It may very well have been that they just don't think that's what a "marriage license" is. That's it. That's their opinion, and if you have a problem with it, dissolve the people and elect a different one. That's what democracy is.

Mark said...

Given the Walker Administration says they will appeal, this will be settled within a year and much faster if the SC lets the 7ths ruling stand and doesn't take the case.

garage mahal said...

Walker is evolving on same sex marriage.

Wince said...

I still haven't seen anyone address the rational basis argument that women and men are different, and therefore heterosexual unions are different than same-sex unions, and that to combine same-sex couples under traditional marriage would likely result in a line of judge-made case law based on facts and values pertinent only to same-sex partner marriages (or vice-versa) that would in a material way disturb the beneficial effects for society of the institution conferred on one segment or the other.

I would think that "rational" legislative interest in curtailing the scope of activist judges to, over time, adulterate marriage in that way would be sufficient to prevent activist judges from, well, adulterating marriage in that way.

n.n said...

Posner fails to appreciate the difference between criteria for normalization and tolerance. They are based on both reality and a preferred or ideal outcome. Despite the advent of "turkey baster" pregnancies, and the morally ambiguous "rent-a-womb", the principles of nature and evolution have not changed.

Homosexual behavior, and other dysfunctional or unproductive behaviors, have no redeeming value to society or humanity. Posner seems to have formed an emotional attachment to homosexuality; notably a selective bias or perhaps prejudice; which has oriented his judgment.

That said, progressivism/incrementalism is an immoral doctrine. Posner, advocates, activists, and friends need to address the whole issue on its merits or delegate to someone who will. It's not limited to marriage. The single principle people need to defend their positions.

66 said...

Judge Posner chooses to treat Indiana's argument as nonsensical because he wants a result that will allow gay people to marry. There really is no other conclusion to be drawn. If Posner were not reaching for a result, he might have characterized Indiana's interest as wanting to promote the furtherance of the state of Indiana by ensuring that there continue to be individuals (who will eventually be taxpayers) born in the state. To do that, the state has recognized marriage as a union of one man and one woman since that is the unit most likely to produce offspring and stable families for the offspring. Why does this important interest get merely snark from Judge Posner? Isn't ensuring the continued existence of the state (and ultimately the country) a reasonably important interest?

66 said...

The argument that Indiana's purported justification is not reasonable since the state allows infertile heterosexuals to marry is really just a red herring, and a pretty juvenile argument to boot. The state has made the rationale judgment that the best chance for continued population growth within the state is to favor the union that is most likely to lead to offspring. Does that mean that every heterosexual marriage will lead to offspring? Of course not. But how does that fact invalidate the state's rationale?

Anonymous said...

Think of Posner as the adolescent who's got everything figured out, and We the People as his stupid parents, and you've pretty much got the picture.

Birkel said...

Nobody is surprised.

I'm sure there are no reasons societies formed the way they did over all these millennia and if there were, everything that made those particular choices persist over other choices is no longer operative.

The die is cast, certainly. Now we will wonder at the social experiment and brave the consequences. If there are no negative consequences, fantastic. If there are negative consequences that prove overly costly, what difference, at this point, does it make?

Freder Frederson said...

The state has made the rationale judgment that the best chance for continued population growth within the state is to favor the union that is most likely to lead to offspring.

How does allowing gay marriage either reduce the number of heterosexual marriages or the number of children resulting from them. You seem to assume that gay people will marry a member of the opposite sex and procreate if gay marriage is denied to them.

Roger Sweeny said...

The states should have argued that they are interested in diversity, and same sex couples aren't diverse.

Anonymous said...

I think it's the law's opponents who are best-positioned to argue that this whole process is ridiculous. The law's supporters are being baited -- "of course I can come up with a rational basis! This and that about parents and biology..."

But they shouldn't have to. I think this law probably doesn't have a rational basis. So? Democracy shouldn't be subjected to a rational basis test.

Why? Well let's start with the basics: because a bunch of people got together and died to form this country, and a bunch more died to sustain it, and at no point did anyone involved in the process say that laws need to have a Rational Basis. So F off.

Curious George said...

Mark said...
Given the Walker Administration says they will appeal, this will be settled within a year and much faster if the SC lets the 7ths ruling stand and doesn't take the case.

9/4/14, 5:01 PM
garage mahal said...
Walker is evolving on same sex marriage.

Walker and J.B. Van Hollen represent the citizens of the state that voted the SSM ban into our constitution. They have to appeal. It's the will of the people and was passed by a large margin.

bgates said...

Think of Posner as the adolescent who's got everything figured out, and We the People as his stupid parents, and you've pretty much got the picture.

Yep. The Posner/Althouse denigration of tradition assumes that there cannot be anything valuable in the world that they don't understand.

No evidence in support of the claim of optimality [of traditional marriage] is offered, and there is no acknowledgment that a number of countries permit polygamy—Syria, Yemen, Iraq, Iran, Egypt, Sudan, Morocco, and Algeria—and that it flourishes in many African countries that do not actually authorize it

Oh, well allow me to offer some evidence of the optimality of traditional marriage: The kind of places that allow other forms of marriage are hellholes like Syria, Yemen, Iraq, Iran, Egypt, Sudan, Morocco, and Algeria, and polygamy also flourishes in many African countries that do not actually authorize it.

LuAnn Zieman said...

Federal Judge, Bucking Trend, Affirms Ban on Same-Sex Marriages in Louisiana
By CAMPBELL ROBERTSON SEPT. 3, 2014, New York Times

NEW ORLEANS — A federal judge here upheld the state’s ban on same-sex marriage on Wednesday, going against what had been a unanimous trend of federal court decisions striking down such bans since the Supreme Court ruled on the matter last year.

In his ruling, Judge Martin L. C. Feldman of Federal District Court said that the regulation of marriage was left up to the states and the democratic process; that no fundamental right was being violated by the ban; and that Louisiana had a “legitimate interest ... whether obsolete in the opinion of some, or not, in the opinion of others ... in linking children to an intact family formed by their two biological parents.”

David said...

Of course the state may still make and enforce moral judgments through laws. Does it all the time. Murder, theft, physical assault, rape, environmental degradation, harassment and a host of other (and often lesser) offenses make that clear.

We even criminalize dishonesty, at least in some of its forms. It's a crime to lie under oath, or in the sale of securities, services, products and a host of other commercial activities. Especially interesting is the criminalization of lying to an agent of the state to avoid or obstruct a criminal prosecution. Yet the agents of the state can and often do lie to suspects to obtain information in interrogation, and of course the first amendment protects the right of our elected officials and others seeking office to lie as much as they want without legal consequence.

So it really isn't morality whose name may not be spoken as a state interest, but certain kinds of morality. I am grasping for an overarching description of what the distinction is between these two classes or morality, but I don't have one. I'm sure people who have thought about this more and more effectively than I have could illuminate it. That might tell us a lot about who we are, or who we think we are.

JackWayne said...

As is usual with Federal judges, they will ignore the 9th and 10th amendments in favor of convoluted bullshit. When are the American people going to wake up and realize how the Federal judges continue to support Big Government by ignoring the Constitution? They do not want to open Pandora's box. It would crush Big Government in a generation. Of course ANYONE has the right to marry. Why do we need a multi-page decision to affirm that? Stop allowing Big Government to run your lives!

Titus said...

Reagan appointed judge-delish.

Quaestor said...

garage mahal wrote: Walker is evolving on same sex marriage.

From the mind of a person well experienced in the field of evolving attitudes.

David said...

n his ruling, Judge Martin L. C. Feldman of Federal District Court said that the regulation of marriage was left up to the states and the democratic process; that no fundamental right was being violated by the ban; and that Louisiana had a “legitimate interest ... whether obsolete in the opinion of some, or not, in the opinion of others ... in linking children to an intact family formed by their two biological parents.”

Explain to me again. How does the fact that two women can marry prevent those who can biologically have children from "linking?"

Is he saying that same sex marriage is ok as long as they don't have children? That's easy. Or that they should not be permitted to adopt? If you assume the state interest quoted is valid, how does gay marriage undermine it?

n.n said...

The rational basis for overturning the traditional orientation, which was derived from the evolutionary successful heterosexual orientation, has an experimental basis. That's the first issue that Posner and company need to address.

The second issue has immediate importance. They need to explain why other orientations and behaviors, loving and not so living, productive and freakish, including those based on assumptions or assertions of consent, can be selectively excluded. In fact, when they reject the faith (their characterization) underlying traditional standards, then the succeeding standards must either be libertine or identify succeeding articles of faith, or cope with creating moral hazards through selective exclusion.

I wonder if Posner and company are willing to address the issue in whole, on all of its merits. So far, they have abstained through either explicit and implicit assertions of disinterest. Their single issue has been secured. So others can cope with the consequences. The "pro-choice" doctrine is not only illogical, or rather inconsistent by its nature, but ultimately counterproductive.

grackle said...

That's what democracy is.

But even in a democracy, even if the majority really, really wants to, individuals have certain rights that must be arbitrated by the judicial branch to protect individuals from mob rule. BTW, America is a republic due to the founders' history-based understanding that pure democracies are too volatile to survive.

Homosexual behavior, and other dysfunctional or unproductive behaviors, have no redeeming value to society or humanity.

Aren't homosexuals "society?" Don't they belong to "humanity?" Could the pursuit of happiness, contentment and equal spousal legal rights be considered of "redeeming value?"

Question: Other than biological children, what do straight married couples provide to society that a same sex couple couldn’t also provide?

The kind of places that allow other forms of marriage are hellholes like Syria, Yemen, Iraq, Iran, Egypt, Sudan, Morocco, and Algeria, and polygamy also flourishes in many African countries that do not actually authorize it.

Perhaps all those places would be less 'hellhole-ish' if they allowed same sex marriage – which NONE of them do. Find us a "hellhole" that allows same sex marriage and get back to us – otherwise the argument doesn't hold water.

jimbino said...

The new frontier appears to be for singles to agitate for the rights granted to married couples, whether gay or straight.

bgates said...

Perhaps all those places would be less 'hellhole-ish' if they allowed same sex marriage – which NONE of them do

Nonsense. To allow polygamy is to allow marriage that includes multiple members of the same sex. You have a very blinkered, antiquated notion of 'same sex marriage'.

Andy Krause said...

Question: Other than biological children, what do straight married couples provide to society that a same sex couple couldn’t also provide?

Well, if the answer is nothing which I'm guessing is what you think. Then non-straight couples also add nothing. This is something Posner forgot to address. If you can see no value in traditional marriage then just do away with it. I'm pretty sure hetero couples will still bond and other couple types won't have to bunch their undies anymore.

Unknown said...

In what I have read so far, Posner does not mention civil unions which grant (so far as I know) every legal benefit of marriage, just by another name. In Washington State civil unions have been able to adopt children, for instance. I think other commenters have pointed out that various multiple party marriages would be able to use Posner's arguments to justify three and four party marriages and some marriages to related parties. Posner shows the same brand of contempt as the cognicenti showed Dan Quayle when he avowed that a single mother is profoundly disadvantaged as a head of family... what a moron!!

Anonymous said...

@grackle -- yes. The people have "certain rights". What are they?

Please don't say "life, liberty, and the pursuit of happiness." That's not a law. That's revolutionary propaganda.

They have a variety of individual rights enshrined in law, such as rights to property, rights not to be compelled by the government except by due process, etc etc etc.

They also have a right to make the government issue them a marriage license? That's the argument? What is the basis for that argument?

Is the basis, they have a right not to have the majority impose any law on them that's not supported by a Rational Basis in a Legitimate Government Interest? That's nice. Where in our laws does it say that? Or is it just a nice thing that you wish were true?

Anonymous said...

The Rational Basis test is fundamentally Utopian. Its very statement -- laws must have a rational basis in a legitimate governmental interest -- is utopian in its vagueness. It really boils down to, "I want to have a good government."

That's nice. I agree, I also want to have a good government. Now that we've dispensed with the stuff of conversing with a 7-year-old, what does it actually mean? Oh, it means that judges get to decide whatever they want? Actually that doesn't sound very utopian.

It's amazing how much we've retrogressed. We've recognized the value of written laws for thousands of years. Now it's not about written laws; it's about what the faculty lounge at Columbia thinks is neat.

I hope I get the opportunity to see those people -- lawyers in general, and judges in particular, and law professors above all -- encounter a society governed by men rather than laws. I suspect they won't like it.

Andy Krause said...

Aren't homosexuals "society?" Don't they belong to "humanity?" Could the pursuit of happiness, contentment and equal spousal legal rights be considered of "redeeming value?"
These are great questions.
Here are some others...

"It’s common in medicine to track men who have (or who simulate) sex with men, instead of asking patients whether they are “gay” or “homosexual”. This is abbreviated “MSM.” The letters for women aren’t as common, but let’s write WSW. In fact, let’s write PSP for people who simulate sex with those of the same sex.
Men can only have sexual intercourse with women, so that when two men or two women engage in certain acts, these can only be simulations and not the “real thing.” Also, the words “gay” and “homosexual” are variable, troublesome, and not universally accepted (are men in prison who engage in certain acts with other men “gay”?); thus, PSP is as neutral a word or term as we’re likely to get.
About these simulations: in particular, sodomy (this applies to both man-on-man and the much rarer man-on-woman). Is it moral or immoral? Normal or abnormal? Natural or unnatural? Disgusting or relative? Sinful or virtuous? Praiseworthy or disdainful? Nobody’s business or everybody’s business? If unhealthy, should it be banned? If immoral, should it be unlawful? Given the heated debate of all things PSP, it’s strange that these questions are scarcely ever asked. Reilly asks, and answers."

Making Gay Okay: How Rationalizing Homosexual Behavior Is Changing Everything, by Robert R. Reilly (Ignatius Press: sample chapter).

Michael K said...

It's amusing to see the rationalizations of same sex marriage advocates, like our hostess, going on about how traditional marriage has no benefits. I think we will see the evidence in places like Ferguson, Mo as the new world order evolves.

I personally don't have a dog in this fight.

Gospace said...

The elites, which include Judge Posner, have decided that SSM is going to happen. And after that, polygamy. Sanitized versions of polygamy are already being presented to the American sheeple who get their cues on living through mass media. "Sister Wives" being the prime example of that. The elite seem to think that legalizing any type of adult living arrangement will lead to a Heinleinian utopia of sexual freedom as in his latter works.

The reality of polygamy is found in places like Saudi Arabia, Iran, and fundamentalist LDS compounds and communities where young men are routinely ejected to fend for themselves in a world they haven't been brought up in, because they're competition for the desireable women the elders want for themselves.

As soon as polygamy is declared legal by the courts, you will see the practice explode in Muslim enclaves within the US such as Dearbornistan. My guess is that right now a gay kiss-in on a Friday evening in Dearbornistan would be far more dangerous for the participants then doing the same on a Sunday morning in front of an Amish meeting house in my area of the country. Or in front of a place homosexuals really hate, St. Patricks Cathdral.

Right now in most major European cities there are sharia compliant enclaves where the police do not enter. So far, there aren't any here, though free speech has been suppressed by the police in Dearborn, because it offends Muslim sensibilities. Legalize polygamy, and in no time at all, sharia compliant police no-go zones will spring up all over the U.S. too.

And once sharia compliance becomes established, how long do you think Lawrence v. Texas will remain the law of the land? It certainly won't be the law in the sharia compliant zones.

buwaya said...

Simple answer to Posner is the most proper conservative one. Its an ancient practice so the burden of proof should be on those proposing a change. It is improper of him to place the burden of proof, effectively, on the proponents of the status quo.

But as we know, it has worked out like this in the law, because the legal process is corrupt and manipulated.

Chuck said...

I honestly used to like Judge Posner.

Here's the most brilliant thinking I have witnessed on the subject of same sex marriage in the last couple of years. It certainly isn't Posner:

https://www.youtube.com/watch?v=YWIhZ5xJJaQ

Ryan T. Anderson is the William E. Simon Fellow in Religion and a Free Society at the Heritage Foundation, and the editor of "Public Discourse," the online journal of the Witherspoon Institute. He's a Ph.D. candidate at Notre Dame.

Chuck said...

Other than favoring their gay colleagues, gay friends, gay hairdressers, gay waiters, gay interior decorators, and in some cases their gay lovers, what self-respecting law professor could subscribe to the garbage in Posner's opinion? Why have any Constitutional framework? Just let the federal courts decide everything because, heck, all the federal judges have law degrees from really fine law schools, law review experience and, well, you have to be really wise to earn yourself a lifetime appointment to your job.

This will breed contempt for the federal courts on a level far exceeding the abortion wars.

I don't think that (absent Roe v. Wade) abortion restrictions would ever be passed into state constitutional law with the overwhelming majorities that have passed gay marriage bans. In our lifetimes, have we ever seen such a usurpation of of the popular will by federal courts?

It's time to quote Scalia again. From Lawrence v. Texas:

"Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct..."

Lewis Wetzel said...

And yet another mediating institution between the individual and the state is vaporized. Zap!

FullMoon said...

I asked an Iranian acquaintance about multiple wives. He said you are required to love and treat each one equally.

Seems like a problem to me.

grackle said...

To allow polygamy is to allow marriage that includes multiple members of the same sex. You have a very blinkered, antiquated notion of 'same sex marriage

My "notion" is the same "blinkered" notion most people have: Same sex marriage is a marriage between 2 people of the same sex. Polygamy is the practice or condition of having more than one spouse at one time.

That these two quite different practices are apparently lumped in together probably accounts for the confusion in the comment.

If you can see no value in traditional marriage then just do away with it.

On the contrary, I see a great value and I would never "do away with it" out of spite because, say, someone was allowed to marry that I did not think should get married and my head exploded.

The kind of places that allow other forms of marriage are hellholes like Syria, Yemen, Iraq, Iran, Egypt, Sudan, Morocco, and Algeria, and polygamy also flourishes in many African countries that do not actually authorize it.

The judge's point was that if the state cites tradition then historically the more traditional marriage is polygamy, polygamy being practiced "in more places and at more times than any other." So tradition is a flawed argument. The judge was not promoting polygamy as the comment seems to imply.

For me a better argument can be made against polygamy on the grounds that polygamy is harmful to society and therefore the state has a compelling interest in forbidding it.

Please don't say "life, liberty, and the pursuit of happiness." That's not a law. That's revolutionary propaganda.

I respect the Declaration of Independence. Truly, it was revolutionary but was it mere propaganda?

Men can only have sexual intercourse with women, so that when two men or two women engage in certain acts, these can only be simulations and not the “real thing.”

I don't think homosexuals are engaging in "simulations." I think they are engaged in actual, real sex of the kind that they prefer. They are not trying to "simulate" anything. The rest of the book's quotation is an irrelevant and tortured distinction between homosexuality in prison and homosexuality outside prison and a series of unanswered questions.

It's amusing to see the rationalizations of same sex marriage advocates, like our hostess, going on about how traditional marriage has no benefits.

Readers, we need a quote here of our hostess railing against the benefits of traditional marriage. But we will not get it because it doesn't exist.

Skyler said...

Classic Posner. Trying to shoe horn values into costs and benefits as though all in the world is economics and as though he has the first clue about economics.

grackle said...

Simple answer to Posner is the most proper conservative one. Its an ancient practice so the burden of proof should be on those proposing a change. It is improper of him to place the burden of proof, effectively, on the proponents of the status quo.

Was "ancient practice" better than our American practice? If I want to do anything, anything at all, does the government have a right to stop me just because elements in the government do not like what I do?

It's the other way around in America, isn't it? Here and in these modern times you are allowed to do as you please within certain limits. It's called freedom. I like it, no, I LOVE it that here in America we are much more free than in those ancient times. A wonderful time and place in which to live.

Skipper said...

Put all judges up for election every year. It's time they were treated as the political animals they are.

chickelit said...

Readers, we need a quote here of our hostess railing against the benefits of traditional marriage. But we will not get it because it doesn't exist.

Doesn't that remain to be seen Grackle? Althouse was horribly, horribly wrong on Obama and disparaged and otherwise discouraged commenters opposing his "non-traditional" values Presidency. She has shown hypocrisy regarding racism -- allowing it to fester here (practiced by a protected minority); and for every "bigot" opposing SSM there has been a corresponding "bigot": e.g., DTL, Andy R. -- all railing against traditional Christianity and all injected to "balance" the majority.

I think you spike the football too soon Grackle.

Patrick Henry was right! said...

"ignored countries permit polygamy—Syria, Yemen, Iraq, Iran, Egypt, Sudan, Morocco, and Algeria—and that it flourishes in many African countries that do not actually authorize it..."

Had to come back to post because this is the best argument that anyone has made in any of these cases - our state defines marriage like is does because our people have concluded, based on thousands of years of experience that we DO NOT WANT TO BE LIKE THESE COUNTRIES, places, cultures....

If we go down the raod with these behaviors, our country, culture, whatever, will be like these h*ll holes on Earth. We want to have a representative republic that reflects our superior cultural reality. We are better than these "countries that permit polygamy—Syria, Yemen, Iraq, Iran, Egypt, Sudan, Morocco, and Algeria—and that it flourishes in many African countries that do not actually authorize it."

The state's rational basis is that our way is better than their way. If you want to change our way to their way, change the minds of the people. This will not happen because the people rationally know that their lives are better than those in Syria, Yemen, Iraq, Iran, Egypt, Sudan, Morocco, and Algeria—and in many African countries that do not actually authorize it

End of discussion.

End judicial tyranny. Amend the law governing federal court jurisdiction to get rid of these undemocratic assumptions of ungranted authority.

n.n said...

Marriage is between one man and one woman. Homosexual marriage modifies the original meaning. Polygamous marriage modifies the original meaning. The issue is that selective exclusion creates moral hazards. This is what Posner and company are required to defend. Furthermore, with the normalization of abortion, there is no logical opposition to any form of modified "marriage". This is what "pro-choice" advocates are required to defend. Well, that and premeditated murder of around 100 million since its state sponsorship. The moral hazard does not arise from a "slippery slope" per se. The "slippery slope" reflects the creation of moral hazards, especially through selective (i.e. unprincipled) exclusion.

rcommal said...

"involuted"

Dang. Now that there is a word. Isn't it?

n.n said...

Evolutionary fitness is the state interest, which is a mandate given to the federal government to govern for Americans and their progeny. If biological reproduction is replaced or displaced, then the law requires including all forms of guardianship, not limited to heterosexual couples or homosexual couplets. If "loving relationship" is the standard, then "equal protection" requires including all forms of relationships, not limited to heterosexual couples or homosexual couplets. The normalization of homosexual marriage opens its meaning. The normalization of abortion changes it motive.

Posner is mistaken about the
The original institution of marriage was engendered by the natural order and an observation of evolutionary fitness. The "theory of evolution" was recorded, in part, several thousand years before Darwin. The science of evolution was self-evident to our ancestors. The biology of human reproduction was self-evident to our ancestors. Unfortunately, the purpose of dating, sex, and marriage have become confused. Even pregnancy has been classified as a "burden" and human life early in its evolution degraded to a "clump of cells", disposable.

Anonymous said...

I'm shocked. Shocked!

As Bob Hope once joked, I'm getting out before its mandatory.

Of all the psychological disorders, this is one of the most distructive, and as a society, we have decided to normalize.

Some decades from now we will look back and wonder how an entire society lost its collective mind. The answer, I believe, is women.

buwaya said...

There have always been any number of countries in the world where one was more free to do as he bloody well liked, as a private matter, than the US ever has been.

I'm not young and I have been around.

If I wanted to let it all hang out and live a life of unrestrained debauchery, I know well enough not to do it here.

This sort of thing is not that liberty everyone was talking about.

Lewis Wetzel said...

What are you to do if the people think that an issue is of great public import and the government says that the issue does not rise to level of a legitimate state interest?

Kirk Parker said...

Full Moon,

An Arab shopkeeper in Southern Sudan put it to a friend of mine differently: "Two wives [in] Maridi. Two wives [in] Khartoum. Very expensive!"

grackle,

My but you are confused! The issue at question is NOT that the state is prohibiting SS couples from having sex, or cohabiting, or purchasing property together. The issue is whether the "state" should issue marriage licenses. Funny, it seems like the "state" is inherently involved in that last bit.

grackle said...

I think you spike the football too soon Grackle.

Just give the readers the quotes where our hostess has been "going on about how traditional marriage has no benefits." Take your time. We'll all wait.

We are better than these "countries that permit polygamy—Syria, Yemen, Iraq, Iran, Egypt, Sudan, Morocco, and Algeria—and that it flourishes in many African countries that do not actually authorize it.

Ever notice that in debates about same sex marriage that the anti-SSM side inevitably tries to turn it into a debate about polygamy? Not that I mind at all to comment and read comment about polygamy on this thread. I have to shift gears, though, since I'm anti-polygamy. But the predictability makes me smile.

If I wanted to let it all hang out and live a life of unrestrained debauchery, I know well enough not to do it here.

If wanting to get married equals "unrestrained debauchery," isn't every married person guilty?

My but you are confused!

About what? Vague, cryptic accusations without quotes to back them seem to be popular at the moment.

CStanley said...

The mistake is in accepting the framing of the questions.

Marriage is an institution, not a positive right (the whole notion of positive rights is problematic anyway, but it's not necessary to address that here.)

The regulation of the institution of marriage is for the states. The only reason there is any federal jurisdiction is the tax code, so if opponents of the status quo object on that basis then the answer is that the tax code is unconstitutional, not the marriage laws.

Following this line of reasoning would likely lead to my preferred outcome, which would be civil unions for heterosexual and homosexual couples, while government declines to weigh in on the definition of marriage.

If I had to argue on the basis of the questions as framed though, I'd go with an argument of state's interest in protecting religious freedom (the idea that SSM sanctioned by the state may well lead to coercion of religious believers to participate in the marriages that violate their religious beliefs.)

sinz52 said...

Two points:

1. Anybody who thinks that marriage between a man and a woman is optimal should browse Craigslist to see what some of those happily married heterosexual couples do in their free time.

"I am looking for a good looking, social, well-mannered 28-40 years old guy to help my wife feel confident and sexy. I envision me and her going to a bar, having a few (too many) cocktails and then you approach and slowly start working your way in with compliments, leg rub, etc. If interested e-mail me"

2. For two centuries now, the courts have had the right and the power to help those who are victimized by unjust laws.

In fact, that was the whole Jim Crow era: All the state laws justifying discrimination against black people were thrown out by Federal courts.

If the Federal courts can override democratically passed Jim Crow laws, they certainly can override democratically passed state laws against same-sex marriage.

The great principle is that democracies cannot violate individual rights, even if a strong majority of the citizens want to.

Lewis Wetzel said...

It is becoming clear that the impetus behind the SSM movement is to force people with religious objections to SSM out of the public sphere.

Chuck said...

sinz52:

Yours is an ill-informed and stupid case, comparing same-sex marriage and Jim Crow.

The difference; when opponents of racial segregation wanted to turn to the Constitution for explicit support in the law, they could easily find it. At great political and social cost, we passed the Civil War Amendments and ultimately the federal civil rights legislation of the 1960's.

There is no corollary in the world of gay rights. There is no 13th, 14th or 15th Amendment for gay people. Women wanted the right to vote; they got an amendment (after several states had taken it upon themselves to do the same thing, without federal interference). Prohibitionists wanted a national ban on alcoholic beverages; they passed an amendment.

Man up; if you want federal constitutional protection for gay rights, do the hard work necessary to pass an amendment.

In the meantime, don't try to pass off the silly argument that the U.S. Constitution, which for 225 years tolerated laws against buggery quite happily (since it was the well-understood legal norm), somehow inveighs against state constitutions which define marriage in the fundamentally traditional way it has been known for centuries in the western world.

I'm not saying you can't have gay rights under a U.S. Constitution; I'm saying that anyone who claims that the current U.S. Constitution protects such rights is engaging in wholesale fabrication of the law. And doing massive damage to the American notion of separation of powers and democratic processes.

chillblaine said...

"Does it think that allowing same-sex marriage will cause heterosexuals to convert to homosexuality?" Female sexuality is certainly more mutable!

"That’s a strange argument; fertile couples don’t learn about child-rearing from infertile couples." Yes, but they do model and learn productive pair-bonding. And children learn and model desirable heterosexual behaviors.

That being said, this is the sound of one person tuning out. The homosexual activists just have too much stamina. I look forward to new words of wisdom from our soon- to -be elder statesmen of homosexual unions.

"Why buy the ass when you get the felching for free?"

"Marriage is an institution of diminished expectations, emotional abuse and infidelity that everyone is entitled to."

Chuck said...

Terry, I have to say that while I am sympathetic to your sentiment, I am very uncomfortable with "religious freedom" being the last bastion of American life where gay rights cannot be enforced by power of federal courts.

I think it is a fools' errand, to rest the defense of state laws defining the legal terms of marriage on any sort of religious notion.

I'm a United Methodist myself. Same as Hillary Clinton. Naturally, I am much more at peace with our church's position on same sex marriage than Mrs. Clinton could be. But of course, the Hillary Clintons will do everything in their power to focus unusual attention and pressure on institutions like the United Methodist Church to bend to the progressives' will. They see church objection to same sex marriage as sort of the last redoubt in the culture war.

I virtually never invoke my own religious beliefs in the gay marriage debate. For me, it is a simple legal issue wherein legal authorities no less than Justices Scalia, Thomas, Alito and Roberts have it exactly right. Those justices have never invoked religious tenets in their decisions on such matters, and I wouldn't either.

I think it is a weakness -- and is actually a red-herring -- to rest any defense of same sex marriage bans on religious principles. The defense of the states requires no such tactic.

I mention all of this because Judge Posner notoriously telegraphed his views in one of his own blog posts wherein he suggested that the only conceivable defense of a view opposing same sex marriage would be a private religious belief.

Of all of Judge Posner's wonderfully clever writing on the law, this witless and arrogant opinion will rank among his worst.

Kirk Parker said...

grackle,

Sorry, I thought mentioning government permission made my reference obvious enough; but since not, here's part of what I was responding to:

"Here and in these modern times you are allowed to do as you please within certain limits."

Annie said...

sinz52 said...
Two points:

1. Anybody who thinks that marriage between a man and a woman is optimal should browse Craigslist to see what some of those happily married heterosexual couples do in their free time.


Mighty broad brush you are painting with. How often do you troll Craigslist, btw? Have you checked out what gays put on there too or you just prefer to smear heterosexuals?

2. For two centuries now, the courts have had the right and the power to help those who are victimized by unjust laws.

That includes religious beliefs too, front and center.

The great principle is that democracies cannot violate individual rights, even if a strong majority of the citizens want to.

In a republic, you cannot violate individual rights, even if a vocal minority and activist judges wish it. That includes the religious, but yet their rights are being trampled when they don't want to participate. How do you address that?

Annie said...

I think it is a weakness -- and is actually a red-herring -- to rest any defense of same sex marriage bans on religious principles. The defense of the states requires no such tactic.

I mention all of this because Judge Posner notoriously telegraphed his views in one of his own blog posts wherein he suggested that the only conceivable defense of a view opposing same sex marriage would be a private religious belief.


So, religious beliefs are okay and protected, so long as you are private about them? How does that square with the 1st Amendment? How do you protect the religious who do not want to participate in the redefining of a religious institution? How do you respect those who believe marriage is a sacrament between one man and one woman, who come together as one to procreate?

Lewis Wetzel said...

"The great principle is that democracies cannot violate individual rights"
You have no individual right to your religious beliefs?
This is not a zero-sum game. SSM were gained at the expense of religious rights.

Chuck said...

Annie, I didn't mean to diminish religious-based First Amendment rights.

I very much agree that it would be a grave offense to the Constitution and to American liberty broadly, to force acceptance of gay rights on religious institutions or religious practitioners who oppose gay lifestyles.

My point was different; I don't think that the constitutional defense of states' same-sex marriage bans should rest on any religious notions. I think that the state bans are perfectly legitimate and reasonable exercises of state power without regard to any religious notions.

Naturally, I'd want to strongly protect religious freedom. Including the religious-based freedom to discriminate against homosexuals, privately. I just don't think that in the same-sex marriage cases, that anyone need to resort to religion to defend the states' sovereign authority.

grackle said...

grackle, Sorry, I thought mentioning government permission made my reference obvious enough; but since not, here's part of what I was responding to:

"Here and in these modern times you are allowed to do as you please within certain limits."


Thanks for the quote. Now at least we know the specific thing of mine that you found to be "confused." But you are still being vague. What about the confusion? You said I was "confused." Are you saying the quote is wrong? That we are NOT allowed to do as we please within certain limits? Inquiring minds want to know …

Nichevo said...

I suppose "homosexuality is pernicious and should be more or less genteely suppressed" was already tried?

Anonymous said...

sinz52: 1. Anybody who thinks that marriage between a man and a woman is optimal should browse Craigslist to see what some of those happily married heterosexual couples do in their free time.

Still flogging your moronic Craigslist "argument", I see.

Ah yes, that's why I think allowing ssm and polygamy is a stupid idea - until you enlightened me on this issue I was entirely unaware that married people cheated and fooled around or did anything besides fuck in missionary position a few times a year. Well, I guess that just proves that all forms of marriage that people have come up with to order their societies are just arbitrary pointless shams!

Hey, you know I read this thing once, about this couple, back in 1540 or something, somewhere in Europe, who were into threesomes and all kinds of kink, and, like, everybody knew! And like, kings and all kinds of other dudes had mistresses! And bastards! But people kept acting like, you know, being the rightful queen or wife or something had some sort of special magic status, same with legitimate children, I mean, what was up with that? There were even high-ranking gay dudes gaying it up with everybody and yet having a wife and legal heirs to whom everybody thought they had some special duty and obligations. What the hell was that all about?

Forebears, sheesh, total hypocrisy and denial, am I right? Or maybe they were just really naïve, not men of the world, like you, wink wink nudge nudge. (Let's not even get into those other civilizations - bloody goat fuckers (craigslist.af) who still insist that marriage is strictly between a man and some arbitrary number of human females.)

I mean, like, why didn't all of Europe slap its forehead over this stuff and draw, I mean, the fucking obvious conclusion that all the marriage and inheritance systems developed over centuries were just entirely irrational traditions that had been pulled out of some ancestor's ass? If only they'd had some jeen-yus jurist like Posner...

Kirk Parker said...

grackle,

"If I want to do anything, anything at all, does the government have a right to stop me just because elements in the government do not like what I do?"

The whole SSM thing is NOT about government prohibiting you from something you want to do; as I said you can have sex with, and cohabit with, and own property together with, and assign medical power-of-attorney to, and leave your estate to ... just about anyone you like. This is not really all that new, at least not in some parts of the country: the first gay couple joint-homeowners I became aware of was in '69 (no, really)--but that was in WA; things were no doubt different in TX then.

Gospace said...

"The great principle is that democracies cannot violate individual rights, even if a strong majority of the citizens want to."

Possibly the most ignorant statement ever posted on Althouse. Democracies can do whatever 50%+1 of the population want. Republics with a strong Constitution operating under the rule of law are restrained. It is why the founders created the United States as a republic, if, as Franklin said, we can keep it.

Judges making a mockery of the Constitution by finding lines written in invisible ink and emanating pnumbras that only the educated elite can see cause the people to lose respect for the law, and will lead to mob law, otherwise known as democracy.

grackle said...

The whole SSM thing is NOT about government prohibiting you from something you want to do; as I said you can have sex with, and cohabit with, and own property together with, and assign medical power-of-attorney to, and leave your estate to ... just about anyone you like.

But not if I want to get married with someone of the same sex. Right? What's preventing that? Oh, that's right … it's the government arguing against it in court.

But that's not "government prohibiting" SSM? Really? Isn't that what the post is about - the government's attempt to prevent SSM, which failed because it was ruled against by a judge? Read the title of the post!

Below are the 2 quotes by me that have been labeled as "confused.":

"Here and in these modern times you are allowed to do as you please within certain limits."

and

"If I want to do anything, anything at all, does the government have a right to stop me just because elements in the government do not like what I do?"

I see nothing in the 2 quotes to indicate confusion. The commentor's accusation that I am confused is bullshit. It's the commentor who is confused.

Chuck said...

Grackle;

SSM is not about your liberty. The SSM wants something from the government and their fellow citizens. SSM proponents want the state to authorize/validate/sanction their same-sex marriages.

Large electoral majorities have voted against that in the states in question. They have legally and properly amended their state constitutions to proscribe such state activity.

In the case of SSM, the state is acting in precisely the same capacity as when it legally defines things like the age(s) of consent for marriage, the degree(s) of consanguinity at which marriage will be proscribed, the procedural requirments for marriage licenses (waiting periods, blood testing, persons atuhorized to perform marriages, etc).

Maybe your comments are not actually "confused." Maybe they are merely hysterical and overblown.

The real question, legally, is upon what basis do federal courts think they have the right to overturn duly-enacted state constitutional provisions? What is it in the U.S. Constitution that says that there is a fundamental right to homosexual sodomy and same-sex marriage?

We know that when the Constitution was written, and when Amendments I through X and later XIII through XV were enacted, no one involved in the process would have dreamed that a right to homosexual sodomy and same sex marriage was being guaranteed. I therefore is a heavy burden for the porponents of SSM to show what it is in the Constitution that now prohibits states from codifying in their state constitutions what was universally understood when our Constitution was drafted and amended.

That's the argument you need to address.

Gospace said...

"The real question, legally, is upon what basis do federal courts think they have the right to overturn duly-enacted state constitutional provisions? What is it in the U.S. Constitution that says that there is a fundamental right to homosexual sodomy and same-sex marriage?

A1: They don't. They invent reasons out of whole cloth, as the judges who do so and the proponents of SSM well know.

A2: See answer 1, the reasons are solely within the emanating pnumbras and invisible ink between the lines.

And the average everyday man in teeh street understands this, and can see the courts are ruling without reason or legal justification, which is why the judiciary is losing the support and respect of the American people.

Gospace said...

By the way, I want to make a point here that SSM proponents don't recognize. SSM, until recently, was never banned by ANY state within the United States. Polygamy was specifically banned in the Utah Constitution, but not by any other state. (Bigamy was defined, and is a crime. I guess we caould also call it attempted polygamy....) The definition of marriage was- "A recognized union between one man and one woman." Perhaps not in those exact words, but that was it. A marriage required one man and one woman. Period. Bans on same sex marriage came about because courts suddenly ruled out of nowhere, "Hey, you people are all idiots! Marriage can be between a aman and a man or a woman and a woman! Can't you see it? It's right here in the Constitution!"

That's when bans on SSM came about. The courts made bans necessary, then declared them illegal.

grackle said...

SSM is not about your liberty.

Sure it is. If I would want to marry someone of the same sex and are prevented from doing so by ANY entity, government or otherwise, my liberty, or freedom if you prefer, has obviously been curtailed.

Large electoral majorities have voted against that in the states in question. They have legally and properly amended their state constitutions to proscribe such state activity.

Interracial marriage used to be against the law, too. There's nothing sacrosanct about bad law, even if the majority is in favor of it. Even if state constitutions prescribe it.

Maybe your comments are not actually "confused." Maybe they are merely hysterical and overblown.

At least my head doesn't explode when a couple of folks want to get married.

In the case of SSM, the state is acting in precisely the same capacity as when it legally defines things like the age(s) of consent for marriage, the degree(s) of consanguinity at which marriage will be proscribed, the procedural requirements for marriage licenses (waiting periods, blood testing, persons authorized to perform marriages, etc).

Logic lesson: Just because the government enforces some good laws doesn't make a bad law a good law. True, the state can attempt to "act" to limit freedom and too frequently does so but thanks to the judicial branch the government cannot just ride roughshod over the individual. It has to pass judicial scrutiny, thanks to our founders.

That's the argument you need to address.

It's called trying to dictate the terms of the debate. Always to be serenely ignored.

Chuck said...

grackle don't try to pull the old "interracial marriage" card on me.

The Court in Loving v. Virginia ruled against the Virginia antimiscegination law because it was invidious racial discrimination.

You may remember racial discrimination from such amendments as XIII, XIV and XV. The opponents of slavery and racial discrimination did all of the hard constitutional and legislative work that SSM proponents have not done.

In Loving v. Virginia there was explicit law to look to. A real constitutional framework, where racial divisions were regarded as "suspect classifications."

You haven't got that, with homosexuals and SSM.

Kirk Parker said...

grackle,

" If I would want to marry someone "

Are you clueless (best case) or being deliberately disingenuous?

How about if I list all the people for whom the government wouldn't recognize my marriage to? Caution, we'll be here all night -- the numbers are in the hundreds of millions... and that's just for US citizens.

grackle said...

grackle don't try to pull the old "interracial marriage" card on me.

When they try to forbid examples or arguments it's usually a sign of desperation.

Are you clueless (best case) or being deliberately disingenuous? How about if I list all the people for whom the government wouldn't recognize my marriage to? Caution, we'll be here all night -- the numbers are in the hundreds of millions... and that's just for US citizens.

But no one wants to marry "hundreds of millions," so that point is irrelevant. It's called a 'straw man' debate tactic. Pretend that your opponent argued for something then righteously destroy the argument that wasn't made.

rhhardin said...

Derbyshire covers Posner podcast mp3 at the end.

He also covers reclining.

Andy Krause said...

On the contrary, I see a great value and I would never "do away with it" out of spite because, say, someone was allowed to marry that I did not think should get married and my head exploded.
I like to know the great value that you see.

...and a series of unanswered questions...
That is the exact point. The questions need to be answered. I am not judging anything here.
Here are my answers to the questions you posed.
Aren't homosexuals "society? Yes they are.
Don't they belong to "humanity? Yes they do.
Could the pursuit of happiness, contentment and equal spousal legal rights be considered of "redeeming value?" Yes it can.

In fairness you could answer a few of mine.
Is sodomy moral or immoral?
Natural or unnatural?
Nobody’s business or everybody’s business?
If unhealthy, should it be banned? If immoral, should it be unlawful?

Like I said most people avoid asking the questions and no one wants to answer.

grackle said...

Here are my answers to the questions you posed … In fairness you could answer a few of mine

Commentors are always free to ignore any question posed by me. My comments are not for convincing the commentors that I debate. Commentors are usually hardened in their positions beyond any persuasion. My comments are geared toward that larger audience, the readers.

Is sodomy moral or immoral?

In and of itself all sex is moral. It's the context in which it takes place that determines morality.

Natural or unnatural?

Define "natural."

Nobody’s business or everybody’s business?

Between adults it's nobody's business.

If unhealthy, should it be banned? If immoral, should it be unlawful?

Sex is not unhealthy and not immoral.

Chuck said...

grackle, I reject your dumbass comparison of same sex marriage to Loving v. Virginia because it is simply a dumb comparison.

No ruling of the Supreme Court places homosexuals in a "suspect classification."

No ruling of the Supreme Court has gone so far as to call homosexual sodomy and homosexual marriage "fundamental rights."

You're not a lawyer, are you? I feel certain that you could not pass Professor Althouse's Con Law II class.

Professor Althouse probably disagrees with me (although she's never detailed her argument on her blog as far as I know), but our argument would be on a wholly different level.

grackle said...

No ruling of the Supreme Court places homosexuals in a "suspect classification."

The commentor seems to have some pet constitutional theories and is fantasizing that I've made a comment about them. Again, quotes from me are nonexistent.

No ruling of the Supreme Court has gone so far as to call homosexual sodomy and homosexual marriage "fundamental rights."

Fine. But what does it have to do with any of my comments? Readers, don't we always get suspicious when no quotes are offered?

You're not a lawyer, are you? I feel certain that you could not pass Professor Althouse's Con Law II class. Professor Althouse probably disagrees with me (although she's never detailed her argument on her blog as far as I know), but our argument would be on a wholly different level.

The commentor apparently cherishes some sort of constitutional law theory, loves to comment and debate about it, gets quite frustrated when it's not paid any attention and even goes so far as to pretend that I've commented on his pet theory.