Calling Richard Epstein and John Yoo, or, if the Supreme Court Legalizes Gay Marriage, How Should We Respond?

 

shutterstock_103670531Constitutional scholar Robert P. George, writing in First Things:

Dred Scott v. Sandford was the infamous case in which the Supreme Court of the United States, usurping the constitutional authority of the people acting through their elected representatives in Congress, purported to deny the power of the United States to prohibit slavery in the federal territories. It is very much worth recalling that Dred Scott was not just a case about slavery. It was a case about the scope and limits of judicial power. It was a case in which judges, lacking any warrant in the text, structure, logic, or historical understanding of the Constitution, attempted to impose their own favored resolution of a morally charged debate about public policy on the entire nation.

The Supreme Court did it again in 1905 in the case of Lochner v. New York (invalidating a worker protection statute enacted by the state legislature), and then several more times in the Warren Court era, culminating in Roe v. Wade—the Dred Scott decision of our own time. Now we face the prospect of yet another Dred Scott-type decision—this time on the question of marriage. I say that, not because same-sex relationships are the moral equivalent of slavery—they are not—but because five justices seem to be signaling that they will once again legislate from the bench by imposing, without constitutional warrant, their own beliefs about the nature and proper definition of marriage on the entire country.

If that happens, the Republican Party, the Republican Congress, and a future Republican President should regard and treat the decision just as the Republican Party, the Republican Congress, and the Republican President—Abraham Lincoln—regarded and treated the Dred Scott decision. They should, in other words, treat it as an anti-constitutional and illegitimate ruling in which the judiciary has attempted to usurp the authority of the people and their elected representatives.

An unconstitutional and illegitimate ruling.

That sounds about right to me. Richard Epstein? John Yoo? How does it sound to you?

Published in Law, Marriage
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  1. user_409996 Inactive
    user_409996
    @EdwardSmith

    Cato Rand:

    Edward Smith:

    Cato Rand:

    Edward Smith:A State Judge in Alabama (I think that is the state) has stated that he will no longer sign off on ANY Marriage Certificates, so that in refusing to sign off on Certificates for the SSM crowd, he cannot be accused of discriminating.

    Churches should follow his example, formally surrendering the right to give legality to ANY Marriage, and any and all Tax and Other Legal privileges they currently enjoy so that no penalty can be exacted against them by the SSM crowd.

    Christians started out with their Marriages having no legal standing. They should return to this status, voluntarily. DON’T get the license. Renounce the license you have, and use the mountain of currently available forms to claim the legal rights covered by the word Marriage.

    The State has declared Christians to be enemies and outlaws. Be enemies and outlaws. Pay your taxes, but don’t buy the meat from the weekly sacrifice to the emperor.

    You will quickly discover that some of the rights covered by the word “marriage” are not available from any other source, and that assembling those that are piecemeal is costly, burdensome, and risky.

    Costly and Burdensome I did know about. I did say “mountains of paperwork”. As to risky, while Christians are rendering unto the State, they can also vote. And they can vote to gain and secure those rights in a piecemeal fashion that other people might appreciate.

    One advantage to this piecemeal fashion is that divorce is a question of going through that “mountain of paperwork” again, the way changing your will, or the beneficiary of your insurance or pension, or who is the executor of that will is.

    Christians, understanding that what they are undertaking still falls under the commandment

    will hopefully take care to ensure that their Holy Union is Spiritual as well as Corporeal and not need to revisit that “mountain of paperwork”.

    Non-Believers, not wishing the difficulty of Divorce, may well be thankful that Christians gave them the out clause in pursuit of the in clause that allows them to leave the field of Marriage (as a legal arrangement) to the barbarians who have swept over the field.

    Huh?

    I know, I know, I speak as Theoretically as any Libertarian.

    • #31
  2. Matede Inactive
    Matede
    @MateDe

    Cato Rand:

    Two different issues.

    1) Some, but not all, states allow common law marriages. The ones that do have their own particular requirements. Generally just living together long enough isn’t sufficient though. And it doesn’t help same sex couples. If you’re not eligible for a license, you’re not eligible for a common law marriage either.

    2) The health insurance, I’m going to guess, was an employer plan, no? Assuming it was, employers are permitted to set their own rules about who you can cover, and most large employers now permit unmarried domestic partners. That started out as a way to cover gay couples who couldn’t marry. As SSM has become more common, some employers are pulling in the reins on it.

    Yes she was working at a hospital at the time and he was a student, so yes a private employer.

    Another question as I’m not a lawyer and not really familiar with the differences. In Connecticut we have civil unions for gay couples and it seems to work well, albiet from my stand point, but I haven’t really dug deep into it. What is the difference legally between a Civil Union and a marriage if there is one?

    • #32
  3. x Inactive
    x
    @CatoRand

    The King Prawn:

    Cato Rand:

    The King Prawn:

    Cato Rand:

    The King Prawn:

    Cato Rand:

    You will quickly discover that some of the rights covered by the word “marriage” are not available from any other source, and that assembling those that are piecemeal is costly, burdensome, and risky.

    The question remains “why is this so?” Surely hatred cannot be the only plausible answer, but that is the one the courts have maintained of late.

    No, this is much simpler and less nefarious. The simple fact is that marriage is both a very distinct legal status, and very rich and complex contractual relationship that has been prepackaged by the state in terms of the bundle of respective rights involved. But you get them all with one fell swoop when you get married. Among the rights that can be duplicated contractually, they are so many and varied, and their applications in various circumstances are so complex, that duplicating the contractual relationship is very difficult. And then of course there are certain rights that are simply only available as a consequence of the legal status. An unmarried couple could hire the best lawyers on earth and would be unable to duplicate them. Among these latter are the rights associated with the “married” tax status. It is not an accident that Windsor was a tax case.

    Why, as in why was traditional marriage granted the package deal alone among all other human relationships? We’ve stopped trying to answer that question in the battle over marriage. We’ve torn down a fence without considering why it was put up in the first place. Does society (and government) hate my friend and her cousin who have shared material responsibilities including owning a home together for many years, or do we consider their relationship different in kind than we would if they were not cousins and were married?

    I don’t mean to ignore this question but I don’t have the energy to have this argument for the 600th time on this site right now. I’m sure Gary or Mike H or somebody else on the pro-SSM side will come along soon enough and you can replay this kabuki with one of them. Maybe tomorrow.

    It’s an honest question. I don’t find calling it kabuki all that helpful. If we are to defy the court as Peter/George suggests then we better have the very highest of reasons.

    I know it was an honest question.  I even agree that it’s an important one.  I’m just bowing out of it for the moment, having kind of had my fill of it for a while.

    • #33
  4. The King Prawn Inactive
    The King Prawn
    @TheKingPrawn

    Cato Rand:

    I know it was an honest question. I even agree that it’s an important one. I’m just bowing out of it for the moment, having kind of had my fill of it for a while.

    Roger that, and I understand completely. I’ve celebrated the death of some of my own posts when then became draining.

    • #34
  5. user_409996 Inactive
    user_409996
    @EdwardSmith

    Well, I made my cookies for the Church Retreat (tomorrow through Sunday), and I have to change for a concert tonight at a Synagogue on the Upper West Side.

    Chewy Peanut Butter Chocolate Chip Cookies & Oatmeal Raisin Cookies

    • #35
  6. Matede Inactive
    Matede
    @MateDe

    The King Prawn:

    Cato Rand:

    I know it was an honest question. I even agree that it’s an important one. I’m just bowing out of it for the moment, having kind of had my fill of it for a while.

    Roger that, and I understand completely. I’ve celebrated the death of some of my own posts when then became draining.

    Cato, go back over to your post on how horrible Illinois is to make you feel better.

    Edward Smith:Well, I made my cookies for the Church Retreat (tomorrow through Sunday), and I have to change for a concert tonight at a Synagogue on the Upper West Side.

    Chewy Peanut Butter Chocolate Chip Cookies & Oatmeal Raisin Cookies

    Did you make those from scratch? They look delicious. You should post the recipe.

    • #36
  7. user_259843 Inactive
    user_259843
    @JefferyShepherd

    I just wish we got to vote on it in our respective states because 9 dudes in robes don’t make laws, particularly in the social space, that have a great deal of respect – see Roe.

    I like to call my views on making the definition of marriage arbitrary: what about the other three men?  First on marriage being arbitrary – marriage of 1 man and 1 woman is grounded  in nature reinforced with the fact that birth rates of men and women are largely 50-50 as China and India are finding out.  Ooops.  Sure you can get married for all kinds of different reasons but nature defines one that is special and, in my view, best for society.  Second, when you open up marriage to what’s not grounded in nature you make the definition of marriage arbitrary.  Once the definition of marriage becomes arbitrary the rules of who and how many can marry each other go away.  One of the more likely forms of marriage is polygamy.  After all, it’s permitted by the Koran and some churches here.  And, who are we to say?  And, discrimination. And, freedom of association. And, on and on.

    So when polygamy becomes permitted and a man takes four wives, what do the other three men do?

    • #37
  8. user_1938 Inactive
    user_1938
    @AaronMiller

    Mendel:When should the states/people/other branches of government actively defy a Supreme Court ruling based on the opinion that the Supreme Court overstepped its bounds?

    [….] providing deference to the Supreme Court also provides a necessary stability to our system. As Profs. Epstein and Yoo often point out, most Supreme Court jurisprudence is based on the Marbury vs. Madison decision, in which the Supreme Court arguably overstepped its bounds. Yet to defy that decision based on a lack of textual support would be to throw our entire system into chaos. [….]

    Government is much like marriage in that it becomes so entangled with one’s way of being that uprooting it is unavoidably painful and risky. It’s ironic then that citizens who don’t believe in the possibility of marital divorce (sacramentally speaking) are perhaps more likely to favor the possibility of severing the bonds of government.

    • #38
  9. x Inactive
    x
    @CatoRand

    Matede:

    Cato Rand:

    Two different issues.

    1) Some, but not all, states allow common law marriages. The ones that do have their own particular requirements. Generally just living together long enough isn’t sufficient though. And it doesn’t help same sex couples. If you’re not eligible for a license, you’re not eligible for a common law marriage either.

    2) The health insurance, I’m going to guess, was an employer plan, no? Assuming it was, employers are permitted to set their own rules about who you can cover, and most large employers now permit unmarried domestic partners. That started out as a way to cover gay couples who couldn’t marry. As SSM has become more common, some employers are pulling in the reins on it.

    Yes she was working at a hospital at the time and he was a student, so yes a private employer.

    Another question as I’m not a lawyer and not really familiar with the differences. In Connecticut we have civil unions for gay couples and it seems to work well, albiet from my stand point, but I haven’t really dug deep into it. What is the difference legally between a Civil Union and a marriage if there is one?

    Well, in part that’s a question of Connecticut state law, which I’m not specifically familiar with, although the odds are that with respect to state law defined rights, the different is essentially nil.  Most states that have passed civil union statutes have essentially said “a couple in a civil union shall have all the rights of a married couple to the fullest extent we can provide them.”

    Where the big difference comes in is that a lot of rights are creatures of federal, not state, law.  The federal government will not treat a state created civil union as a marriage for federal purposes, so a couple in a civil union will have none of the federal rights of a married couple.  There’s about 1000 different ones, but some of the most important and commonly discussed are things like spousal social security benefits and all federal tax rights that flow from being married.

    The DOMA case, for example, involved a woman named Edie Windsor who was hit with an estate tax bill of over $300,000 when her wife (as defined by New York law — where they lived) died.  If the IRS had recognized their marriage, there would have been no estate tax because married couples are entitled to something called the “unlimited marital exemption” from estate taxes upon the death of a spouse.

    Now Windsor did actually involve a marriage under state law.  It was just that the federal government refused to recognize it.  But if they’d been in a Connecticut civil union, they would have had the same problem.  Interestingly, even after Windsor, the federal government still doesn’t recognize civil unions.  Windsor has been implemented by basically requiring all federal agencies to treat state law same sex marriages like any other marriage, but if your state only recognizes civil unions, you’re out of luck for federal purposes.

    There are a host of other issues too, ranging from immigration status, retirement benefit rights, retirement plan treatment issues, COBRA rights (to go back to employer health insurance), and on and on.  Does that help?

    • #39
  10. user_554634 Moderator
    user_554634
    @MikeRapkoch

    Aaron Miller:

    Mendel:When should the states/people/other branches of government actively defy a Supreme Court ruling based on the opinion that the Supreme Court overstepped its bounds?

    [….] providing deference to the Supreme Court also provides a necessary stability to our system. As Profs. Epstein and Yoo often point out, most Supreme Court jurisprudence is based on the Marbury vs. Madison decision, in which the Supreme Court arguably overstepped its bounds. Yet to defy that decision based on a lack of textual support would be to throw our entire system into chaos. [….]

    Government is much like marriage in that it becomes so entangled with one’s way of being that uprooting it is unavoidable painful and risky. It’s ironic then that citizens who don’t believe in the possibility of marital divorce (sacramentally speaking) are perhaps more likely to favor the possibility of severing the bonds of government.

    I’m not sure throwing things into chaos would be a bad thing.

    • #40
  11. x Inactive
    x
    @CatoRand

    Matede:

    The King Prawn:

    Cato Rand:

    I know it was an honest question. I even agree that it’s an important one. I’m just bowing out of it for the moment, having kind of had my fill of it for a while.

    Roger that, and I understand completely. I’ve celebrated the death of some of my own posts when then became draining.

    Cato, go back over to your post on how horrible Illinois is to make you feel better.

    Edward Smith:Well, I made my cookies for the Church Retreat (tomorrow through Sunday), and I have to change for a concert tonight at a Synagogue on the Upper West Side.

    Chewy Peanut Butter Chocolate Chip Cookies & Oatmeal Raisin Cookies

    Did you make those from scratch? They look delicious. You should post the recipe.

    Yea, I’m thinkin’ the cookies are cheering me up too.  :)

    • #41
  12. user_409996 Inactive
    user_409996
    @EdwardSmith

    Matede:

    The King Prawn:

    Cato Rand:

    I know it was an honest question. I even agree that it’s an important one. I’m just bowing out of it for the moment, having kind of had my fill of it for a while.

    Roger that, and I understand completely. I’ve celebrated the death of some of my own posts when then became draining.

    Cato, go back over to your post on how horrible Illinois is to make you feel better.

    Edward Smith:Well, I made my cookies for the Church Retreat (tomorrow through Sunday), and I have to change for a concert tonight at a Synagogue on the Upper West Side.

    Chewy Peanut Butter Chocolate Chip Cookies & Oatmeal Raisin Cookies

    Did you make those from scratch? They look delicious. You should post the recipe.

    Always from Scratch.  There is no other way for me at this point.

    http://allrecipes.com/recipe/chewy-peanut-butter-chocolate-chip-cookies/

    http://allrecipes.com/recipe/oatmeal-raisin-cookies-i/

    You will also see a recipe for the Oatmeal Raisin Cookies on the inside of every lid of Quaker Old Fashioned Oatmeal.

    • #42
  13. user_409996 Inactive
    user_409996
    @EdwardSmith

    Cato Rand:

    Matede:

    The King Prawn:

    Cato Rand:

    I know it was an honest question. I even agree that it’s an important one. I’m just bowing out of it for the moment, having kind of had my fill of it for a while.

    Roger that, and I understand completely. I’ve celebrated the death of some of my own posts when then became draining.

    Cato, go back over to your post on how horrible Illinois is to make you feel better.

    Edward Smith:Well, I made my cookies for the Church Retreat (tomorrow through Sunday), and I have to change for a concert tonight at a Synagogue on the Upper West Side.

    Chewy Peanut Butter Chocolate Chip Cookies & Oatmeal Raisin Cookies

    Did you make those from scratch? They look delicious. You should post the recipe.

    Yea, I’m thinkin’ the cookies are cheering me up too. :)

    Cookies are for Freedom Fighters!

    • #43
  14. Mendel Inactive
    Mendel
    @Mendel

    Mike Rapkoch:

    Aaron Miller:

    Mendel:

    Government is much like marriage in that it becomes so entangled with one’s way of being that uprooting it is unavoidable painful and risky. It’s ironic then that citizens who don’t believe in the possibility of marital divorce (sacramentally speaking) are perhaps more likely to favor the possibility of severing the bonds of government.

    I’m not sure throwing things into chaos would be a bad thing.

    In my opinion, the “nuclear option” for any type of public relationship should always be on the table (with the possible exception of….actual nuclear war).

    For instance, the Senate should always leave itself open to abolishing the filibuster, we should always be open to attacking Iran (or any other rogue state) over its nuclear program, and we should also reserve the right to disobey Supreme Court rulings.

    But the corollary to leaving the nuclear option on the table is using it as absolutely sparingly as possible, and truly only in the worst-case scenarios. For me, a ruling on same-sex marriage would not meet that standard – and in any case, it would be far less relevant than Roe v. Wade.

    • #44
  15. Ricochet Member
    Ricochet
    @ArizonaPatriot

    Cato Rand:I was just kind of shocked that Peter was anti-Lochner. RINO!

    LOL.  I don’t think Peter is necessarily anti-Lochner.  He was just quoting Robert P. George, who is obviously anti-Lochner.

    • #45
  16. Jojo Inactive
    Jojo
    @TheDowagerJojo

    Jeffery Shepherd:

    So when polygamy becomes permitted and a man takes four wives, what do the other three men do?

    This?

    • #46
  17. Johnny Dubya Inactive
    Johnny Dubya
    @JohnnyDubya

    Fredösphere: Among the countries on the leading edge to adopt gay marriage are the Netherlands, Sweden, and Norway. Johnny, can you describe a scenario that is even remotely plausible where any of those countries still have gay marriage 25 years from now?

    EJHill

    You mean after the Islamic Revolution?

    Fredö, was that your point?  If so, then I’m not sure what the Islamization of Europe (another inevitability, in my mind) has to do with the question of whether the Republican party should damage its future prospects, perhaps irreparably, by opposing SSM.

    • #47
  18. x Inactive
    x
    @CatoRand

    Jojo:

    Jeffery Shepherd:

    So when polygamy becomes permitted and a man takes four wives, what do the other three men do?

    This?

    They look like a very happy throuple.

    • #48
  19. Ricochet Member
    Ricochet
    @ArizonaPatriot

    This post made me curious, so I did a quick review of the status of state SSM laws.  Here’s what I found:

    34 states ban SSM as a matter of state law.  In 19 of these states, the SSM ban has been invalidated by a federal court decision.  In 3 more of these states, the SSM ban has been invalidated in part of the state by a federal court decision.

    The 34 states banning SSM as a matter of state law include all 24 of the red states, plus 7 purple states (CO, FL, MO, NV, OH, VA and WV), plus 3 blue states (CA,PA, OR).

    11 states have approved SSM by legislation, of which 10 are blue states and 1 is purple (NH).

    1 state has approved SSM by referendum (blue state ME).

    4 states have approved SSM by judicial decision under the state constitution, of which 2 are blue states (MA, NJ) and 2 are purple (IA, NM).

    • #49
  20. user_2505 Contributor
    user_2505
    @GaryMcVey

    Fredösphere:

    Johnny Dubya:Similarly, “gay marriage” is inevitable. Anyone who believes otherwise is kidding himself.

    Among the countries on the leading edge to adopt gay marriage are the Netherlands, Sweden, and Norway. Johnny, can you describe a scenario that is even remotely plausible where any of those countries still have gay marriage 25 years from now?

    Fredosphere, can you imagine any reason they won’t? Tell us. Johnny Dubya is right.

    EDIT: For some bizarre reason this got posted about two and a half hours after I sent it. Thanks for the Islam explanation, and it might apply to Holland, but I don’t very much it’s going to apply to Sweden and Norway.

    • #50
  21. user_1938 Inactive
    user_1938
    @AaronMiller

    Arizona Patriot:This post made me curious, so I did a quick review of the status of state SSM laws. Here’s what I found: [….]

    Thanks for the information.

    There is also the consideration of legal rights for unmarried partners. As I recall, Texas changed some laws in the past decade to facilitate hospital visitations, inheritance rights, and such among unmarried people. These laws have merit beyond the application to romantic couples. Friends and siblings, for example, should also be free to make such arrangements with as few headaches as possible.

    • #51
  22. x Inactive
    x
    @CatoRand

    Gary McVey:

    Fredösphere:

    Johnny Dubya:Similarly, “gay marriage” is inevitable. Anyone who believes otherwise is kidding himself.

    Among the countries on the leading edge to adopt gay marriage are the Netherlands, Sweden, and Norway. Johnny, can you describe a scenario that is even remotely plausible where any of those countries still have gay marriage 25 years from now?

    Fredosphere, can you imagine any reason they won’t? Tell us. Johnny Dubya is right.

    I suspect Fredo is thinking what Johnny said — in 25 years they’re going to be tossing gays off buildings in Amsterdam, never mind letting them marry.

    • #52
  23. Jojo Inactive
    Jojo
    @TheDowagerJojo

    Cato Rand:

    Jojo:

    Jeffery Shepherd:

    So when polygamy becomes permitted and a man takes four wives, what do the other three men do?

    This?

    They look like a very happy throuple.

    They do look happy. So do these.  And an honest gay marriage advocate has to admit that limiting a marriage to two is far more arbitrary than requiring at least one man and one woman.   Really there’s no limit to the preposterous mockery of marriage that can be imagined.  But one thing at a time.

    • #53
  24. Ricochet Member
    Ricochet
    @ArizonaPatriot

    On the point of PR’s post, what precisely does Mr. George propose?  His suggestion that Republicans treat a pro-SSM USSC ruling as an “anti-constitutional and illegitimate ruling” is short on specifics.  Does he mean:

    • Republican state officials should refuse to issue marriage licenses to SSM couples, despite federal court orders mandating that they do so?
    • The IRS should reject tax returns from SSM couples claiming various marital benefits, and seek to collect the full amount of tax from such couples, treating them as unmarried for tax purposes?
    • The DoJ should prosecute SSM couples who claim to be married on various federal forms that must be signed under penalty of perjury, including tax returns?
    • The Social Security Administration should refuse to pay marital benefits to SSM couples?

    I’m sure there are many other examples that I haven’t imagined.

    • #54
  25. x Inactive
    x
    @CatoRand

    Jojo:

    Cato Rand:

    Jojo:

    Jeffery Shepherd:

    So when polygamy becomes permitted and a man takes four wives, what do the other three men do?

    This?

    They look like a very happy throuple.

    They do look happy. So do these. And an honest gay marriage advocate has to admit that limiting a marriage to two is far more arbitrary than requiring at least one man and one woman. Really there’s no limit to the preposterous mockery of marriage that can be imagined. But one thing at a time.

    Those were the same guys JoJo.  And this honest gay marriage advocate doesn’t have to admit anything.  I don’t know what yardstick you use to measure relative arbitrariness, but I’ve never seen such an instrument.  I happen to think two, in our social, cultural and legal context, is going to be very hard to break out of, whereas I think opening up marriage to same sex couples has been quite simple, and quite painless for all except what Mencken called the “puritans” — those haunted by the fear that someone, somewhere, may be happy.

    • #55
  26. Johnny Dubya Inactive
    Johnny Dubya
    @JohnnyDubya

    Merina Smith

    Professors Epstein and Yoo both favor redefining marriage, so they are perhaps not the best people to ask.

    JD, it is simply silly to call this a civil rights issue. It has nothing to do with equality. Equality simply means treating like things alike. The question always is, what is the significance of the differences? Couples that can produce children are not like those who can’t. They are in some ways, but in other crucial ways they aren’t. What you say is the reason there has not been a conversation about the crucial issues. This is not inevitable because it is a really stupid idea. The definition of marriage is what keeps in place a lot of crucial understandings–that the world is made up of men and women, TWO genders, that when one of each gender gets together, sometimes they produce children, and when they do this they create a family that they are responsible to raise. Redefine it and suddenly everyone is claiming their own gender and couples of the same gender that cannot reproduce together are claiming that third party reproduction is hunky dory, kids don’t really need or want to know their mother and father. Marriage become about the needs and wants of adults and kids are the losers. No, this is just the beginning of the battle. Our feckless courts have ensured that it will be long and ugly, but those who deny nature don’t tend to fare well in this world. She has a way of slapping down human hubris eventually.

    Merina, I’m actually very sympathetic to elements of the anti-SSM argument.  I appreciate that people want to preserve the “sanctity of marriage” as it has been defined for countless generations.  As far as your argument above goes, though, there are some real flaws with it.  To take just a couple of examples:  (1) People have been “claiming their own gender” – and even the pronouns they wish to be addressed by – for some time.  That has nothing to do with SSM.  (2) You don’t like “third party reproduction” where “kids don’t…know their mother and father”?  This sounds like you oppose adoption of any kind.

    But you and most of the commenters are missing the point.  The original post was not asking whether or not SSM is bad.  It was asking whether Republicans should take a “man the barricades” approach against SSM.

    Can you honestly say that SSM opposition is a political winner?  When the floodgates have already been opened?  When one of the most popular TV sitcoms features an endearing, married gay couple with an adorable daughter?

    I just think the anti-SSM argument is irrelevant at this point.  You say SSM “is not inevitable because it is a really stupid idea”.  I’m not so sure it is a stupid idea, but even if I thought it were, I would never assume that it was anything other than inevitable.

    Thought experiment:  Resolved:  SSM is inevitable.  Making that assumption, do you think Republicans should oppose it?

    • #56
  27. Jojo Inactive
    Jojo
    @TheDowagerJojo

    Cato Rand:

    Jojo:

    Cato Rand:

    Jojo:

    This?

    They look like a very happy throuple.

    They do look happy. So do these. And an honest gay marriage advocate has to admit that limiting a marriage to two is far more arbitrary than requiring at least one man and one woman. Really there’s no limit to the preposterous mockery of marriage that can be imagined. But one thing at a time.

    Those were the same guys JoJo. And this honest gay marriage advocate doesn’t have to admit anything. I don’t know what yardstick you use to measure relative arbitrariness, but I’ve never seen such an instrument. I happen to think two, in our social, cultural and legal context, is going to be very hard to break out of, whereas I think opening up marriage to same sex couples has been quite simple, and quite painless for all except what Mencken called the “puritans” — those haunted by the fear that someone, somewhere, may be happy.

    I fixed my link.  It’s to a lesbian throuple in Massachusetts.   They’re having a baby.  (It’s a miracle!) One woman was married twice before she married the second one in the throuple, and then they both married the third one in their own minds though legally only the first two are married, of course.  The third one who is not legally married to either is the one having their baby.

    But the important thing is they are happy.

    • #57
  28. Jojo Inactive
    Jojo
    @TheDowagerJojo

    Thought experiment:  Resolved:  SSM is inevitable.  Making that assumption, do you think Republicans should oppose it?

    Yes.

    Of course I lost my last job for metaphorically sticking my head into a woodchipper just like that, but there are some things you can’t go along with for expedience.  If it ain’t right, it ain’t right.

    • #58
  29. user_645127 Lincoln
    user_645127
    @jam

    Johnny Dubya:(2) You don’t like “third party reproduction” where “kids don’t…know their mother and father”? This sounds like you oppose adoption of any kind.But you and most of the commenters are missing the point. The original post was not asking whether or not SSM is bad. It was asking whether Republicans should take a “man the barricades” approach against SSM.

    I have a new way to explain adoption.

    Family structure inequalities among children have risen dramatically since 1960 and continue to rise. Divorce, cohabitation, single parenting, assisted reproductive technology, etc., all contribute to the rise in family structure inequalities among children.

    SSM creates another family structure inequality among children, and it expands on a pre-existing one. It creates a new inequality in the sense that it removes the limiting principle of “two”. See, for example, California’s recent three parent bill what was inspired by a lesbian marriage/custody dispute.

    SSM expands on a pre-existing inequality by further legitimizing a lack of sex diversity among a child’s parents (Murphy Brown, meet Elton John).

    This is a brand new framework for defending natural marriage, and so it’s probably the first time you’ve heard it explained this way.

    Now we can address the inequality that you raised, namely, adoption. Why is adoption OK with natural marriage supporters? Because it was not caused by the custodial adults.Any family structure inequality not caused by the custodial adults I refer to as an “indirect inequality.” In these sorts of inequalities, custodial adults are responding to a situation outside of their control. The impetus of the inequality is not located with the custodial adults, it is located elsewhere.

    The types of inequalities that are caused by SSM, I refer to as “direct inequalities”–they are caused by the custodial adults. The impetus of the inequality is located with the custodial adults, not elsewhere. Here is a chart I created to show the difference.

    Examples of Direct and Indirect Family Structure Inequalities Among Children

     

    Direct Inequalities (caused by custodial adults)

    Indirect Inequalities (custodial adults are responding to a situation outside of their control)

    Unilateral divorce/divorce without marital fault

    Adoption

    “Blended families”

    Foster care

    Step-parents, step-siblings, half-siblings

    Death of one or both natural parents

    “Intended” parents/deliberate birth certificate falsifications

    Divorce with marital fault (custody goes to innocent spouse)

    Child lives in more than one dwelling

    Pregnancy after rape/mother keeps child

    More or less than two legal parents

    Donor conceived individual

    Lack of parenting sex-diversity (single parenting/Murphy Brown; same-sex parenting/Elton John)

    Unmarried parents

    Paternity fraud

    • #59
  30. user_1938 Inactive
    user_1938
    @AaronMiller

    Johnny Dubya:

    [….] The original post was not asking whether or not SSM is bad. It was asking whether Republicans should take a “man the barricades” approach against SSM. Can you honestly say that SSM opposition is a political winner? When the floodgates have already been opened? When one of the most popular TV sitcoms features an endearing, married gay couple with an adorable daughter?

    I just think the anti-SSM argument is irrelevant at this point. [….]

    I agree that resisting the gay movement is politically unpopular. And that is unlikely to change given Republican fecklessness, the dominance of liberal entertainment, the general drift of our culture, and the inability of so many traditionalists to consider modern marital norms (marriage for affection) apart from their own place and time in human history.

    But this is a “hill to die on”, I think, because what is at stake is freedom of thought. The fight isn’t really over legal benefits or opportunities. It’s an Orwellian game of usurping words and traditions as old as mankind to suit new politically correct definitions. It’s about calling “marriage” something that isn’t marriage to form a society uprooted from history, nature, and anything that gets in the way of the Utopian visions of the Left.

    It’s not that we think two gay men should not be married. It’s that we think two gay men cannot be married, regardless of legal pretenses to the contrary. Activists aren’t asking us to include gays in a cultural option. They are asking us to deny reality… to publicly proclaim state-sanctioned beliefs and to deny our own.

    • #60
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