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Fight Against Gay Marriage Running Out of Legal Avenues
The Supreme Court’s decision yesterday to leave undisturbed cases striking down gay marriage bans in five states should be no surprise, though it does put the lie to the Court’s gay marriage decisions two terms ago.
In that case, Justice Anthony Kennedy’s opinion for himself and four liberal Justices (Ginsburg, Breyer, Sotomayor, and Kagan) spent most of its time praising federalism and admitting that marriage and family law remained under the control of the states. It then briefly — and without much explanation — found that the federal Defense of Marriage Act could only come from irrational hatred of gays. DOMA’s refusal to grant gay marriages the same federal benefits as heterosexual marriages, the Justices claimed, violated the principle that all laws must have some rational basis. Presumably the Court did not find all bans on gay marriage throughout the nation unconstitutional because of the unprecedented nature of the issue, which had not yet been fully discussed and ventilated in the lower courts.
The decision is no surprise because there is no split in the lower courts. Every federal appeals court to face the issue has found bans on gay marriage to be unconstitutional under the same logic as Windsor, which itself did not strike down any state marriage laws. The Justices are unlikely to take the case until a circuit court upholds a state ban on gay marriage. Why should the Court do so when it can rely on the lower court judges to do its work?
More importantly, the Court will not take these cases because a majority of the Justices agrees with the result. Even though Justice Kennedy’s opinion claimed not to prejudge the issue, its reasoning clearly struck down bans on gay marriage. If a federal ban on married gays receiving equal benefits violated the Constitution, then bans on those marriages themselves would have to violate the Constitution too. Advocates for the bans have had the time to accumulate empirical evidence that might suggest a legislature could have a rational basis to ban gay marriage, but they have failed to do so.
As someone who has supported gay marriage as state policy, but opposed its imposition by judicial decision, it seems to me that the legal fight is pointless. Like opponents of Roe v. Wade, gay marriage critics may succeed over the decades in narrowing Windsor, but I see little hope of overturning it. They should focus their efforts on changing public opinion, where abortion opponents have found their greatest success, though I think generational change will render gay marriage less and less controversial.
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What’s the point in trying to change public opinion, when judges have come to believe they have the right to strike down any law that they don’t believe has a “rational basis”? Is this power in the Constitution? No. Is it even implied in the Constitution? No. Does it matter that the legislature that passed a given law obviously thought there was a rational basis for it? Apparently it doesn’t, which means that judges literally have veto power over all laws. All they have to do is say that a law doesn’t have a rational basis and it’s case closed. They don’t even have to defend their conclusion.
Advocates for the bans have had the time to accumulate empirical evidence that might suggest a legislature could have a rational basis to ban gay marriage, but they have failed to do so.
Failed because they are unable to do so.
Given that marriage as an institution and as a basis for society is thousands of years old, I argue the burden of proof is not on those who want to preserve marriage as it is (“ban” as you say), but on those who want to take a wrecking ball to it.
Anyway, it’s moot now; you won. Congratulations. Well played.
Here’s a rational basis: divorcing marriage entirely from procreation has a deleterious effect on children, resulting in their becoming commodities. Further, divorcing marriage from procreation turns marriage into a mere contractual relationship, rather than a lifetime commitment to foster the family. It makes no difference that many marriages already fail, that is a reason to further bolster marriage, not dilute its meaning.
Or: Marriage is an institution that predates the State. The State, in setting up marriage laws, is recognizing a pre-existing institution. So-called gay marriage did not exist prior to the State. Since the State is recognizing an institution, and not creating it (after all, people would still be “married” even if no marriage licenses were ever issued), the State is not in the business of discriminating when it limits the marriages it recognizes to the types of marriages that existed before sovereignty.
Now, you may disagree with those (and there are many more), but you cannot say they are irrational, unless you’re of the opinion that any view other than pro-gay-marriage is, per se irrational.
Let me also say that a government is free to institute gay marriage as well. I simply don’t think it’s constitutionally required. I doubt the framers or the reconstructionists did either.
Herbert, this has all happened in a nanosecond when you think about family and culture It takes generations to see the effects of this kind of thing. Which is what marriage defenders have been saying all along.
I have no respect for judges and no faith in democracy. I have no faith in justice, or fair tax collection or the wisdom of leaders or the military (because of the leadership.) Seven years ago I did. Fundamental transformation indeed.
Is “it” over? Wouldn’t you agree that that depends on what “it” is? If “it” is “stopping gays from participating in civil marriage,” then yes, that’s over. If “it” is “attaching mothers and fathers to their children and to one another,” then no, I don’t think “it” is over. Check out my new proposal on the member feed.
Wouldn’t it be nice if some of this judicial abuse went in a salutary direction? How about striking down the IRS code’s use of progressive taxation on the grounds that it violates the 14th Amendment guarantee of equal protection, and that such inequality has no rational basis and is instead rooted in envy in the hearts of the poor? Or striking down the social security or medicare laws on the basis that they discriminate against the young?
What is amazing is that courts actually have the power to do these very things, if a handful of judges wanted to. Liberals would stand speechless, realizing that the power they spent years building up has been turned against them, and that there was no appeal other than amending the Constitution.
This is almost certainly just the beginning of judges’ redefining marriage for society. I think the full impact of these gay marriage decisions won’t hit until a group that’s less mainstream than gays decides to push for their inalienable marriage rights – and gets them. Marriage has, for the whole of human existence across almost every culture, been two people, of opposite sexes, of a certain age, of certain familial distance, of the same species, and alive – but no longer.
So why should gays be so special that one facet of traditional marriage can be changed but not the others? The inevitable answer will be, They shouldn’t.
If one can change the gender, the why can’t one change the number? After all, polygamy has been accepted by cultures in the Muslim world, Sub-Saharan Africa, and in Mormonism – a culture recognition far broader and better established than gay marriage. Who are we to say their love is wrong?
If one can change the gender, the why can’t one change the age? Child brides are common in many parts of the world to this day, including the Indian subcontinent. Arranging a marriage for a four-year-old girl can be a part of their rich and wonderful culture. Who are we to say their love is wrong?
If one can change the gender, the why can’t one change the family relations? Studies show incest can have certain deep-seated psychological and possibly physiological roots, and the gay marriage cases state that procreation cannot be considered as the basis for marriage. Who are we to say their love is wrong?
And so on, and so forth. Pedophiles, zoophiles, and paraphiles have made arguments that their sexualities should be as accepted as heterosexuality, and many doctors and scientists make arguments that such “alternate” sexualities can be outside of a person’s control and should not be stigmatized by society.
In the not-too-distant future, when the news comes down about a man legally marrying his own seven-year-old daughter, people may look back on these court decisions and realize that redefining marriage for “equality” was probably a bad idea. But I suspect most people will just shrug, silently accept that whatever the government has decreed is the indisputable law, and apathetically say to themselves, “Who are we to say their love is wrong?”
You’ve highlighted the main point, which is that there’s no limiting principle to how far you can move the line that defines marriage. And that in turn means that marriage will not just be redefined, but will cease to have any meaning and will therefore cease to exist.
Appeal to tradition is a fallacy of argumentation.
This is why the courts don’t defer to it.
I’ll be honest that I’m dismayed, but I’m not surprised. Given the last decision, it was apparent that the Supreme Court was moving on the side of SSM, and hearing these cases wouldn’t change that. As far as they are concerned they needn’t argue this any more; they’ve won.
I’m also dismayed in that all opposition towards SSM has been written off as bigotry in legal document. Not only did they win, but they are sore winners who want to punish the losers. The legal attacks on private citizens cements this fear in my mind.
Although people compare this to abortion’s long legal and cultural battle, I see this progressing more like divorce in the short-to-mid-term. It will linger, we’ll be expected to understand it happens. Even when it shows to have detrimental effect on others, the supporters will be too much invested to allow a change.
The more immediate concern will be how far the government seeks to force our endorsement. It’s not enough to declare it legal, there’s forces which seek to coerce our approval out of us. At present that’s moving quickly. And although we keep warning about polygamy I think that is not as concerning as the trans-movement which is following rapidly on the heels of SSM with the same threats and coercion for approval.
Statistically speaking, on average, gay couple’s kids have outcomes similar to if not the same as straight couples.
Statistically speaking, on average, single people’s kids have outcomes worse than those of kids raised by couples, whether or not that couple is straight or gay.
There is no evidence that gay couples produce worse outcomes for kids. There is evidence that single people produce worse outcomes for kids.
You are far better off worrying about kids with one parent than kids with two gay ones.
Slippery slope is a fallacy of argument, and this is why the courts don’t rely on it.
Also, the courts did not rule on your right to call homosexuals or whomever you want “wrong.” You are still allowed to call whatever you want “wrong.” Instead, they ruled on the ability for same-sex couples (regardless of whether either or both of the partners identify as gay, lesbian, bisexual, transgender, intersex, queer, paraphiliac, or what have you) to obtain the rights and privileges defined by the federal government because there was no rational basis not to. That’s all. No more no less.
Rawls, obviously those who passed DOMA, and the president who signed it, thought it had a rational basis. In our form of democracy, as opposed to a dictatorship, the question is not ultimately about whether something is right or wrong, or whether a certain policy is fair or a good idea. The question is who gets to decide the answer to those questions. Judges were not intended to be the only or final arbiter of morality in our system. But they are, because they now are literally able to overturn/refuse to enforce any law as long as they say that it has no rational basis in their opinion, which they do not have to justify or defend. For practical purposes, this is equivalent to being able to overturn a law merely because they disagree with it. The only appeal is to judges on a higher appellate level, which soon runs out.
Rawls, since you delight in using “fallacy of argument” as a blunt instrument, you could at least cite your evidence.
Appealing to the collective wisdom and experience of our ancestors is a logical fallacy. Didn’t realize that, thanks for enlightening me!
Plus you included a link to wikipedia, so there’s no point in further debate. Wikipedia locuta; causa finita est.
I agree CU–genderlessness is their next mountain to conquer. I think that’s a harder slog though, because how do they pitch it? It’s bigoted to say you’re a man or a woman? They’ll do their best though. Already well along the road here in CA.
“Over? Did you say ‘over’? Nothing is over until we decide it is! Was it over when the Germans bombed Pearl Harbor? Hell no! ”
This is part of why I wonder if I should even vote.
A majority of the judges on the Supreme Court were appointed by Republican Presidents. Electing a Republican President is nearly worthless when it comes to defending our culture from corrupt judges and lawyers.I hope the homosexual caucus doesn’t expect any social conservative help in keeping their taxes low. We’ll leave politics and you can deal with European socialist economics.
The way this has all proceeded has been so irregular and so lawless that there is nothing like a cultural consensus on it. That can only come when change has been allowed to happen from the bottom up. This is why I foresee bitterness and division forever. How stupid are they that they could not see that this would be the result of their actions? Of course, people are already used to doubting and resisting the court because the Roe decision was similarly irregular and lawless, and both resulted in ridiculous reasoning by the Supremes. This was a different set of judges, but the modus operandi has been the same. They don’t try to follow the constitution, they make law from the bench, they overturn the will of the people in the process, and do it callously and mendaciously, and hyper-politically. Their claim to authority is consequently seriously compromised–in fact destroyed. At least, I suppose, there is some freedom in knowing that their “authority” is worthless. You know that they will do their worst and you just have to plan your strategies accordingly.
Marriage is a contractual relationship.
The reason conservatives have failed so badly, and repeatedly, on this issue is that they absolutely refuse to treat this as a legal matter related to contracts.
Instead, they insist on treating it in abstract moral terms.
And that’s a sure way to fail in the courts.
So now conservatives will keep beating this dead horse, just as the Liberals want them to do, polarize Americans even further on social issues, just as the Liberals want them to do, and distract Americans from the issues that really matter…
…just as the Liberals want them to do.
According to a Townhall Commentary podcast today, with commentary by Michael Medved, there is not a groundswell of public support for gay marriage. Medved said a September Pew Center Survey found that only 49% favor allowing gays and lesbians to marry legally. Medved says support for gay marriage declined by a full 5 points since February of this year. He said that meanwhile the supposed tidal wave of gay marriages is more like a trickle. He said the overall percentage of adults who are married went down this year to its lowest level ever, while meanwhile same sex cohabiting partners made up an even smaller percentage of households in 2013 than in 2012. Medved said the best estimates show the total number of gay marriages is at most at 250,000, less than half of one percent of the 56 million American marriages.
If Medved is right on these numbers, maybe this is all a tempest in a teapot, and there will be very little influence of same sex marriage on mainstream society going forward, after the media/cultural elites take their victory lap.
Why did we expect there to be?
The “conservative” argument, resting on moral arguments, was that allowing gay marriage would be devastating to the “institution of marriage” etc. There was never any reason to believe this to be the case: gay marriages would be an insignificantly tiny % of total marriages, and in no way do they affect other people’s marriages.
Whether people support it or not in polls is irrelevant, if the arguments for or against it are so confused (and they are on both sides).
Conservatives could have resolved this issue a long time ago by treating it as a legal contractual matter, and come to a compromise. Instead, they decided to go the moral route, and shoot themselves in the foot when the predicted apocalypse didn’t happen.
Given that marriage as an institution and as a basis for society is thousands of years old, I argue the burden of proof is not on those who want to preserve marriage as it is (“ban” as you say), but on those who want to take a wrecking ball to it.
You do realize that all these laws that being struck down are less than 40 years old, with most of em being less than 20 years old?
Yer full of it. California had civil unions and the activists still went after marriage.
The fight for marriage (the real thing, not the simulacrum) may have run out of legal avenues, but the fallout is just beginning. We’ll see now if the churches are left alone. Or if “conscientious objectors” get to keep their businesses or their homes. I fully expect the sexual jihadists to overreach, which, ironically, may help the cause of traditionalists.
katievs, wherever you are, you were right. I was wrong. This always needed to be an argument about morality. About higher things, like the meaning and purpose of marriage and the first, most important freedom — freedom of conscience. We were never going to win this with less.
katievs, wherever you are, you were right. I was wrong. This always needed to be an argument about morality. About higher things, like the meaning and purpose of marriage and the first, most important freedom — freedom of conscience. We were never going to win this with less.
Who has the high moral ground in this argument, those who want the state to not recognize gay relationships or those who think that the state should be treating gays who desire to marry on par with the rest of us.
If a man and his adult daughter choose to be husband and wife, then they should be able to obtain the rights and privileges defined by the federal government, should they not? What is the rational basis to deny this to them? From the logic used to redefine marriage, there is no basis to ban incest, and in this, the most litigious society ever known to history, those laws will be challenged.
That’s all. No more, no less.
As for your alleging I have called homosexuals “wrong,” that line is a line from the gay rights movement itself: “Who are you to say our love is wrong?” is a common phrase used on signs, etc., at protests, and I am simply echoing that silly phrase.
What are some of the worst non-Muslim countries to be gay? Cuba, China, North Korea, Vietnam. Russia – which is still essentially the authoritarian Soviet Union – has an abysmal gay rights record. But even American Lefties are terrible. Three words: The Mattachine Society. The Mattachine Society was a group of gay men who had Communist sympathies in the 1950s. Why their own club? The Communist Party forbade homosexuals from joining. After all, homosexuality does not produce more workers for the fatherland. It is simply about gratification, another distraction from building the great Communist society. Homosexuality is – GASP! – bourgeois.
So if the Left actually disdains homosexuality on a deeply rooted ideological basis – and it does – then there must be an ulterior motive for the Left’s rather sudden fondness for forcing gay marriage down everyone’s throats. The Left has destroyed the family, destroyed civil society, and is working diligently at destroying business. That leaves just one leg left holding up Western society – religion.
The whole purpose of gay marriage is to act as a cudgel with which to bring organized religion to heel – nothing more, nothing less. The Western Left has grabbed onto this idea because it is sort of the ultimate social engineering: If government can make people say two men is the same as a man and a woman, then they can pretty much force people to agree to anything. This has nothing to do with gay rights whatsoever and everything to do with absolute state domination.
Or those who think that marriage might be really, really important for connecting Mom and Dad permanently to children. Let go of the equality thing, Herbert. This has nothing to do with equality. The law always discriminates. That’s its job. Talking about equality is just an excuse to avoid the real issues.
WC and Katie–I don’t know–in the contemporary secular climate with the lapdog media, and opponents who would do anything to win–well, hard to beat that back. But history is still surprising. Recently support for redefining marriage has actually been going down. Forcing it on the nation doesn’t help that, but on the other hand, it also makes the problems that come along all the more glaring. My husband just had lunch today with a man who has been fighting abortion for 30 years. He’s had some really down times, but now he’s greatly encouraged because we’re winning on that. Who would have thought this in 1972? Reality is conservative, and sooner or later that will smack the nation upside the face.