Conservatives & gay marriage
The Washington Post today carries a profile on Ted Olson, the former Bush solicitor general and the man who won Bush v. Gore, questioning why he has taken on the attack on Proposition 8 (California's ban on gay marriage). There are two assumptions widely held in the media that are plain wrong: a) that conservatives cannot support gay marriage; and b) if you support gay marriage, you must be in favor of having the courts impose it nationwide. I opposed the Bush administration's proposal of a constitutional amendment banning gay marriage in 2004, but I also think that the courts should not engage in ever more activism to make up yet another constitutional right. This should be a matter for the people of individual states to decide, which ultimately will place the right to gay marriage on firmer foundations than, say, abortion, where the Court's activism has harmed the Court and poisoned our politics.
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Jun '10
Re: Conservatives & gay marriage
With all do humility, Mr Yoo, you are so very correct. Gay marriage is a societal evolutionary adaptation. If the courts decide or even legislatures, rather than a popular plebiscite of the folks, the result will be worse for gays than if they are "awarded" a victory without society's blessing. Much progress has been and continues to be made on acceptance of homosexuality as a human condition. Marriage is really all that is left. Re-defining the term to allow for same sex after all of these thousands of years, might be a bridge too far still at this time. Patience is my suggestion. If one has a partner, see a lawyer and get all things covered by marriage in a legal document. Oh, and maybe be happy you don't have the marriage penalty of our tax code.
May '10
Re: Conservatives & gay marriage
I've never understood how conservatives can consider the definition of marriage a state-by-state issue.
First, federal income tax includes marriage as a relevant criterium. This could be changed, of course; but it obviously makes the definition of marriage a federal concern under present circumstances.
Second, and more significantly, the Constitution says that the legal documents of one state must be considered to be valid by other states. This creates all sorts of problems when a gay couple moves to a traditional-marriage state. What adoption rights does the couple have? Can they be divorced in a traditional state? Is the state not forced to acknowledge the union as valid if marriage is a factor in its own income tax rules?
The third reason concerns governement, but is social rather than legal. Marriage is the first and most fundamental act of civilization, of any society. It is inherently public. It bonds one family to another and secures the next generation. Is it possible to change the foundation of one's society without serious and widespread repercussions? And how different can states be from one another culturally and continue to identify themselves as belonging to a cultural union, a national identity?
May '10
Re: Conservatives & gay marriage
Rah rah- like Mr. Cheney, I wholeheartedly endorse this being an issue for the states to decide. I also believe that if the states decide, their choices should not be end-run by "full faith and credit" challenges or lawsuits such as Mr. Olson's that appear to me to trivialize due process and civil rights issues in a blatant attempt to undercut the democratic will. If I were African-American I would be livid about the invalid equivalencies being asserted.
We should at least pass laws that offer a form of domestic partnerships to pairs who cannot (as opposed to refusing to; e.g., gays, platonic relatives or geriatrics cohabitating, etc.) marry, in order to accomplish reasonable and beneficial things, and I personally don't see a difference between DADT and just letting grown up military people be honest- as long as everyone adheres to a standard conduct policy.
But Ted Olson's legal challenge is presently being pursued in exactly the same manner as the abortion decisions were. No matter how delightful are the people involved, you don't move society through laws, without changing minds. Justice Kennedy, please note.
Re: Conservatives & gay marriage
Aaron Miller: I've never understood how conservatives can consider the definition of marriage a state-by-state issue. [...]
The third reason concerns governement, but is social rather than legal. Marriage is the first and most fundamental act of civilization, of any society. It is inherently public. It bonds one family to another and secures the next generation. Is it possible to change the foundation of one's society without serious and widespread repercussions? And how different can states be from one another culturally and continue to identify themselves as belonging to a cultural union, a national identity?
You ask the right questions, Aaron. My question: is there any constitutional obstacle to citizens of states casting votes about which marriages will be recognized by their respective states? If the answer is no -- and I believe that it is -- then that sets the table for whatever is to come. As messy as this may be, it is more legitimate, by far, than a universal ruling handed down by as high a court as plaintiffs can command. As the California marriage cases revealed, asking Justices to resolve the matter requires them not to legislate from the bench but, disastrously, philosophize.
May '10
Re: Conservatives & gay marriage
Aaron, I agree with your views on marriage, but I also sympathize with the federalist principle articulated by Mr. Yoo. Although various procedural difficulties are a probable result, these problems may be necessary. In a sense, local self-government will never run as smooth as the centralized authority of a lone behemoth government, and I prefer bad laws in individual states to those universally introduced by an unelected, legislative court. If our Governing Authorities do us wrong with respect to marriage, I would rather they make this mistake on the local level where it does not plague all of the American people, where it has a greater chance of being overturned, and where it is more like to reflect the popular opinions of that particular local.
I also have a question for Mr. Yoo. Some have argued the Supreme Court had jurisdiction over the abortion issue because it touched on the right to life mentioned in the 14th amendment. They simply gave the wrong ruling. You would respond?
May '10
Re: Conservatives & gay marriage
To articulate my question a little better, Mr. Yoo: Are you saying the Supreme Court should not have considered Roe v.Wade -- no matter which way their decision swung?
Re: Conservatives & gay marriage
One quibble I have with Gay marriage proponents is the specious argument that gays are denied the right to marry. Everybody has the same right to marry: Any unrelated man and woman can tie the knot. One's relative attraction to items as disparate as french fries or the starting lineup for the LA Lakers does not enter into the equation. The real argument is that gays want to expand the available marriage pool by including individuals of the same sex.
May '10
Re: Conservatives & gay marriage
Why can marriage be considered a civil rights issue at all? It seems obvious that having the government recognize your marriage is not a right. You need a license for that, which is only issued if you satisfy some basic criteria:
Proponents of gay marriage as a civil right just want to do away with the last requirement.
May '10
Re: Conservatives & gay marriage
Back in 2004, the brilliant Shelby Steele did the best job I have seen of explicating the issue.
http://www.opinionjournal.com/extra/?id=110004846
May '10
Re: Conservatives & gay marriage
Mr. Savage, I agree completely. I always wondered if singles should start the next great "civil liberties" campaign. After all, just because a person is unattached does not mean the government should deny them the legal right to marry themselves, right? If marriage does not have to be between a man and woman, then who is to say it must be between a plurality of individuals in the first place?
May '10
Re: Conservatives & gay marriage
Duane Oyen: Back in 2004, the brilliant Shelby Steele did the best job I have seen of explicating the issue.
http://www.opinionjournal.com/extra/?id=110004846 · Jun 14 at 11:18am
Great article! Thanks for sharing Duane!
May '10
Re: Conservatives & gay marriage
The government confers certain benefits on heterosexual partners that it does not confer on homosexual partners. It prefers heterosexual marriage and has elevated it to special status in the eyes of the law.
The arguments that this is necessary for continuation of the species or the raising of children in civil society is specious. Gay couples raise children now, so if a commitment sanctified by the state is a public good then surely it is good for the children in these families as well. Any argument to the contrary ultimately boils down to a matter of taste or religious conviction. Any effort to dress is up as constitutional civics is, again specious. The notion that we should segregate the practice of gay marriage by geography has far more damaging consequences for the Republic than its legalization. The founding fathers surely didn't condone gay marriage, but neither did they condone miscegenation, women's suffrage or the rights of black men and women to vote.
I don't believe that government should be in the marriage business any more than it should be in the car business or the home ownership business. Let the government grant civil unions and churches grant marriages.
May '10
Re: Conservatives & gay marriage
Of course, Trace, Adams, Jefferson, and Madison didn't exactly stand in the middle of an argument on the subject and express their views. Why? Because such an issue was so obviously unthinkable at the time it would have been a wasted discussion.
I posted a link above with one argument on why framing this as a civil rights issue is not particularly convincing.
If there was a chance that the courts would not be hijacked to eliminate any distinction between straight and gay couples with respect to adoption, I might find myself in greater sympathy with your view. They won't, so I have to be a bit reluctant to endorse that particular wedge.
May '10
Re: Conservatives & gay marriage
A distinction can be made between raising children and raising them well -- in a way conducive to fostering a healthy culture. But who decides what “well” even means? Here I agree with you -- it is a matter of taste or religious conviction. In fact, all arguments must appeal to faith or opinion. If an argument is made without reference to God or the moral underpinnings of religion, then it must inevitably appeal to the fluctuating views of men.
I think you have demonstrated the irony of the moral indignation displayed by the supporters of gay marriage. Nietzsche, an atheist with the guts to be consistent, once wrote, "When the English actually believe that they know intuitively what is good and evil, when they therefore suppose that they no longer require Christianity as the guarantee of morality, we merely witness the effects of the dominion of the Christian value judgment."
May '10
Re: Conservatives & gay marriage
Why would you say that? There are tons of things that are "geographically segregated". I think that is an nothing more than an awful dysphemism for federalism.
Anyways, it's unfair to say that allowing states to extend new privileges to their citizens is some new form of "segregation" just because some states opt to make no change.
Re: Conservatives & gay marriage
The Court had to decide Roe; it was a claim by an individual that her Fourteenth Amendment rights were being violated by a state. But the Court should have decided the case the other way. Finding that the Due Process Clause did not include the right to an abortion would have returned the decision to the states, and to the political process.
Re: Conservatives & gay marriage
One other point -- I don't see why gay marriage is too important to be left to the states. It is true that there would be some legal difficulties with state-by-state rules, such as no recognition of gay marriages in other states, or having federal tax law follow state law on marriage. But those issues arise in other settings, like child custody, and are handled.
Marriage is important, but we let equally important decisions to be settled by state law. The death penalty varies by state -- where you commit a murder can determine whether you live or die -- as does most issues of criminal law. Child custody, inheritance, and most other issues of family law depend on state law. The basic protections for your property, your right to make contracts, and to recover for accidents, depend on state law.
May '10
Re: Conservatives & gay marriage
Intuitively, this is where I would lean. What do people think of this?
May '10
Re: Conservatives & gay marriage
Cindy
Intuitively, this is where I would lean. What do people think of this? · Jun 15 at 4:48am
What is the difference between a present-day civil marriage and your hypothetical civil union?
May '10
Re: Conservatives & gay marriage
All related legal capacities (like hospital visitation rights) can be granted without a civil union if the state allows. One can even adopt a child without being married. If there is anything gay couples can't do, it is file taxes jointly.
Granting civil unions to gay couples is about nothing more than trying to normalize homosexual coupling.