The Massachusetts Court Decision on Gay Marriage Is No Shocker





Mr. Schocket is an assistant professor of history at Bowling Green State University in Ohio and a writer for the History News Service.

The Supreme Judicial Court of Massachusetts, that state's highest court, decided this month that the state's constitution does not forbid same-sex civil marriages. It therefore paved the way for legal recognition of gay and lesbian marriages there. The decision has already heightened the national debate concerning same-sex marriages. And if at least one similar long-ago ruling from the same court is any indication, it's going to provoke a long, protracted, bitterly contested debate along one of the central fault-lines of democratic government -- and will be decided many years from now by courts rather than by the voters.

More than two centuries ago, in a landmark case resembling the one on same-sex marriage, the Massachusetts supreme court ruled that slavery was unconstitutional in the Bay State. Although it would be several more years before all slaves in Massachusetts would be set free, the Commonwealth v. Jennison case of 1783 ensured that slaves could successfully sue their masters for freedom. Then as today, Massachusetts judges addressed a tension at the center of this nation's legal and political system: the delicate balance between majority rule and individual rights.

In both instances, a majority of Americans opposed the courts' decisions. The 1997 federal Defense of Marriage Act defines marriage as a union between a woman and a man. Recent polls indicate that more than half of the public is against same-sex marriage and only about a third in favor. Likewise in the late eighteenth century, given that only three northern state legislatures begrudgingly passed gradual abolition measures in the 1780s, it's safe to say that most late eighteenth-century voters were unwilling to give up slavery.

Massachusetts courts have thus, in two striking cases, shown themselves to be willing to swim against the popular tide. They have seemingly challenged the will of the majority, the fundamental source of authority in a democracy.

In another parallel between the two cases, the court in each instance decided by referring to the Massachusetts constitution's first article, guaranteeing "inalienable rights" to all citizens. The presiding judge in the crucial 1783 slavery case stated forcefully that the state constitution's first clause declared "that all men are born free and equal." Slavery, the judge argued, directly contradicted the principle that all people should enjoy legal freedom and equality.

Similarly, the current chief justice of the Massachusetts Supreme Judicial Court, Margaret H. Marshall, pointed to the same sentence, writing that the state constitution "affirms the dignity and equality of all individuals." She reasoned that the state cannot deny some pairs of citizens (two men or two women) the same rights it accords to others (a woman and a man).

By abolishing slavery in 1783 and upholding same-sex marriages in 2003, the Massachusetts Court reaffirmed another of the most dearly held American beliefs: that everyone should be equal in the eyes of the law.

What the old conflict over slavery teaches us about the current debate over same-sex marriages is that the country may be in for another long, long controversy. Although by the early nineteenth century all the Northern states had committed at least to eventual emancipation, slavery's Southern supporters clung tenaciously to their "peculiar institution," further entrenching it in their society, their economy and their legal systems into the 1860s. And it wasn't until the 1960s that a growing national consensus, fueled in large part by court decisions, finally forced many states to eliminate laws that essentially made African Americans second-class citizens.

While the debate over same-sex marriages may last less than 200 years, it may still be a long time before popular opinion on the issue coincides with how judges define the rights of individuals to civil marriage. Already, both proponents and opponents of same-sex unions are digging in, using the same kinds of contentions employed to attack and defend slavery: quoting the Bible, invoking the Declaration of Independence and the federal Constitution, citing the latest scientific and social research and making claims about human nature.

Commonwealth v. Jennison and its long aftermath also indicate that, regardless of when or if agreement between majority opinion and jurisprudence ever occurs, the matter most likely won't be settled by voters or their elected representatives. Southern states retained slavery for another eighty years after the Massachusetts decisions and seceded from the Union in 1861 rather than give up the right to enslave.

The battle over same-sex marriage won't result in a civil war. But like other such emotionally charged issues involving conflicts between individual rights and the popular will, this one will probably be settled in the courts rather than at the ballot box.

So, whatever side of the same-sex marriage debate you're on, feel free to get ready to shout your opinions from the rooftop to convince your fellow citizens. But don't hold your breath waiting for them to agree with you.


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Mike Yak - 12/8/2003

Shall we prohibit post-menopausal women to marry? Since, as a matter of biology, they can't have children either. Right?

My father, approaching 70's, is getting married to a woman of 75. I'm pretty sure they can't have any children. Though, they are choosing to be married as a symbol of commitment, and to set, what they believe, is a "good example for the grandchildren." Since, they'd like to cohabitate and travel together without getting separate hotel rooms. Regardless of their reasons, I can't see making their marriage illegal because they can't biologically have children.

It is also very presumptive for those like NYGUY to say that marriage isn't "necessary" for them to enjoy a loving relationship, and should therefore be prohibited.
To them, it is very necessary. It is their morality that makes it so, and they are certainly entitled to their morality.

Surely, someone will rage about the immorality of homosexuality, you're entitled to your morality, but don't legislate it to everyone else. If you wanna preach it and pray for it and advocate it, I'll defend your right to do so. But let's not legislate it.



Mike Yak - 12/8/2003

That is true.

But, if a same-sex couple chooses to marry, for whatever reasons. Just because you or Hollywood says it isn't necessary to be happy, shouldn't make it illegal. To some, marriage is necessary to be happy. It represents a deeper commitment than simply living together.


Mike Yak - 12/8/2003

Did you miss my point entirely?

"I am unable to follow your "standing in the way of nature" comment. First time I heard that one.

By "standing in the way of nature", I was replying to Steve Brody's comment that marriage exists in its present form due to "survival of the fittest", a natural law. I was simply trying to illustrate that applying a natural law to a social institution is silly. And if he believed that premise that he might very well be standing in the way of nature (the natural law of survival of the fittest), by not allowing it to continue to evolve to include same-sex marriage. Again, I don't really think "survival of the fittest" applies, I was just illustrating the silliness of it.

I don't discriminate against other forms of loving relationships, but to me...several are arguing against same-sex marriages on the premise that they will lead to these other marriages. Seems to me that you should be against the type of relationship you are against. If you aren't opposed to same-sex marriage, except that it will lead to brother-sister marriages; why not allow same-sex marriages and be opposed to brother-sister marriages???

So, I guess my question is: why are you opposed to same-sex marriages?

I'm not opposed to any adult consensual relationships. Though, the idea of brother-sister relationships turns my stomach a little, so do a lot of other things that aren't illegal--I think that is a moral issue, not a legal one.


Jonathan Dresner - 12/7/2003

I'm sure I don't want to get into this discussion right now (finals and papers are starting to dominate my waking hours) but I think the distinction between "interpretation" and "contortion" or "activism" is a false one.

Throughout history, law codes have evolved in response to changing circumstances and specific cases. Go back and read Hammurabi or Leviticus or UMCJ and what you will see is the accumulation -- and sometimes rationalization -- of a lot of case law, either in the form of collecting and recording judgement or in the form of correcting and making more consistent disparate cases.

Law is not just legislation. Law is an accumulation of legislation, judicial precedent and "tradition" (in the sense that laws and systems evolve through use to mean one thing rather than another).

Within our own legal system, the Judiciary has two distinct functions: application of law to specific cases, and evaluation of the law with regard to constitutionality. Sometimes those roles can be carried out in a minimal, conservative (with a small 'c') fashion because the laws and constitution are relatively clear on most issues.

But there are issues and cases that fall between legal cracks, that pit legal principles and rights against each other, that represent the clash of rights and of principles, or legislation that is either written or applied to infringe and limit constitutional protections. Those cases are going to require judges to exercise their own judgement (I'm pretty sure that's why their called "judges", actually) and make bold, sometimes unpopular decisions.

Personally, I'm something of a judicial conservative myself, but that also entails recognition that the Judiciary is a coequal branch of government that *must*, at times, exercise its rightful authority to provide a check and balance to the other branches. Sometimes those decisions change the law: that's their job.


Cram - 12/7/2003

rg,

1) "The 13th Amendment to the constitution ended slavery in the US NOT a supreme court decision in Massachusetts."

This is very true, however it was a court that set the stage by saying that blacks could never be citizens of the US (Dred Scott v. Sandford) and it was also a court that validated, and then invalidated social segregation. Either way, the influence of teh courts were profound.

2) "Activist courts in the US have for some years now taken it upon themselves to bypass the legislative process and enact laws by "interpreting" (if not out right contorting) the constitution to fit their own agenda."

I agree with that as well... unfortunitely, the culprit, John Marshall, has been dead for quite some time.

3) "Soon marijuana will be legal under the "interpretation" that a person has the "right" to be free from pain...followed by the argument that my civil rights are being violated because the right to smoke pot is extended to a target group me."

I find that unlikely. It is possible however that the court might find it unconstituional for the federal government to regulate a states police powers. I don't think they will use that justification however, although I would support it either way.

4) "I feel that "activist" judges have allocated unto themselves the powers that constitionally belong to the legislatures. Liberal courts don't interpret the constitution, they contort it to fit their own ideology."

Make no mistake, conservative judges are no less active (see Bush v. Gore in which conservative justices chose to overturn a State court decision on an issue the Constitution has given to the States- it a very liberal position).

5) "That is why the current "interpretation" of the 2nd amendment allows liberals to crush freedom of religion."

Hate to nitpick, but I think you meant to say the 1st amendment.

I am not really sure what yours beef is with the court and the freedom of religion clause, but I do share your concern about judges making the law instead of interpreting it.

However, that is the way it has been since 1803 (Marbury v. Madison). It has been done by liberals and conservatives, Democrats and Republicans, Whigs and Independents. That is the nature of our judicial system. Roe v. Wade was an exmaple of the court making legislation, but then so was Miranda v. Arizona, the Dred Scott case, and many more (my personal favorite is Lockner v. New York in which the Court said that New York could not set a minimum hour work week- the decision prevented any level or branch of government from setting any kind of labor standard until the 1930's, despite overwhelming public opinion AND government opinion to the contrary). Now THAT is power.


rg - 12/7/2003

to start with:

(1) Comparing slavery (the total lack of any rights) to the issue of deniel of a few "rights" (debatible) of a small minority is a gross distortion of issues.

(2) The 13th Amendment to the constitution ended slavery in the US NOT a supreme court decision in Massachusetts.

Activist courts in the US have for some years now taken it upon themselves to bypass the legislative process and enact laws by "interpreting" (if not out right contorting) the constitution to fit their own agenda.

The issue of gay marriage is but the latest case in point.

Roe vs Wade being an existing case in point.
When the courts (not the people) decided to legalize abortion, the courts conjured up a non-existent "constituitional right to privacy" and so ruled that a woman has a right to abortion.
(today that is being refered to as a "reproductive right" as well...)

The American people were completely left out of the process of enacting these new "rights.

Soon marijuana will be legal under the "interpretation" that a person has the "right" to be free from pain...followed by the argument that my civil rights are being violated because the right to smoke pot is extended to a target group me.

By the way, I'm not particuarly against abortion or the legalization of marijuana ... I just think the society I live in should have a voice in the decision... there ARE other people living in the US beside gays and liberal judges.

I feel that "activist" judges have allocated unto themselves the powers that constitionally belong to the legislatures. Liberal courts don't interpret the constitution, they contort it to fit their own ideology.

That is why the current "interpretation" of the 2nd amendment allows liberals to crush freedom of religion. Please read the ENTIRE 2nd amendment:

Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The part about "prohibiting the free exercise" part seems to have been erased by the liberal activist judges.... activist judges have a tendency to interpret only so far...


Back to abortion. If the issue were sent through the legislative process MY GUESS is abortion would be legal WITH some limitations. Late term would be out. Governmment funding would be a sticking point. (personal guess... rape, incset, life of mother would squeak in...just a guess)....

My point is, this is not a few judges interpreting some obscure piece of legalize. When our nations laws are altered I think the people ought to be included in the process.































NYGUY - 12/7/2003


Mike,

"Forbidding same-sex marriages is not going to stop, or even reduce homosexual acts one bit."

NYGUY,

Good point Mike, homosexual acts are not a function of legalisms and are similiar to the relationships of all other couples who live together no matter who their partner is. This has been made legal by the U. S. Supreme Court.

I think you prove the point that many in Hollywood recognize, getting married is not necessary so long as couples truly love each other.


Cram - 12/7/2003

Mike,
Good points!


NYGuy - 12/6/2003

Mike,

“So, there you are, standing in the way of nature. Let marriage evolve into a better organism!! Like I said, that's just silly.”

NYGuy

I am unable to follow your "standing in the way of nature" comment. First time I heard that one.

How does same sex couples living together differ from heterosexuals living together, except for the normal mistake of nature? The Supreme Court has already said that it is an acceptable relationship for both groups, as well as those living with their sisters, mothers, etc. What more do you want?

I don’t find the arguments about marrying your sister, mother, brother, etc or having many wives or husbands as silly. The basic argument for same sex relationship is that they can live with a love one, which is being done now. Why do you discriminate against these other forms of loving relationships?

I personally find Steve’s arguments more persuasive than your emotional appeal for actions that are already a part of our society. What more do you want?


Mike Yak - 12/6/2003

With all due respect, the argument that what we have now is superior because of "survival of the fittest" is just plain silly. Why do we try to change anything then? Since whatever we have has survived. OR, maybe the institution of marriage is still evolving, and will be much better, stronger, faster, once same-sex marriage is allowed. So, there you are, standing in the way of nature. Let marriage evolve into a better organism!! Like I said, that's just silly.

Personally, I think we should have same-sex marriage. Homosexuals should be entitled to the same misery as the rest of us. Then we can have same-sex divorces and spousal support. I'm tired of homosexuals getting away without the litigious complications of having sex. Okay all kidding aside, it's pretty weak to argue this whole thing on the "sanctity of the man-woman union" with the no-fault divorce, etc. etc.

Also, to be against same-sex marriages because it will lead to brother-sister, child-parent, and polygamy marriages doesn't wash with me either. If you are against brother-sister marriages, then be against that, and have your reasons. Don't be against same-sex marriages because it will lead to something you really are against.

Does any of us think that by prohibiting homosexuals to marry, that they will then decide to marry heterosexually and have children? I can see it now "Gee, I can't marry Bob, so I'll just get married to Mary and have kids." Allowing same-sex marriage does not detract from heterosexual, child-rearing families, it simply allows a segment of our poplulation the inalienable right of "the pursuit of happiness."

If you think homosexuality is just wrong, then argue that on a moral level, not a legal one. Forbidding same-sex marriages is not going to stop, or even reduce homosexual acts one bit.

Thanks for taking the time to read.


Steve Brody - 12/5/2003


The fact that polygamy has existed in the past is really not an argument that monogamous marriage is not something to be valued and defended. If you believe in a “survival of the fittest” model of the universe, than you must agree that monogamous marriage of a man and women has triumphed over all other forms of marriages. Citing older forms that have ceased to exist as an argument is like citing the existence of dinosaurs as an argument that reptiles are a superior life form.

I’m not sure Ben Franklin’s experiences are relevant, either. Franklin was known for his bawdiness late into his life and particularly while he represented this country as our Ambassador to France. By today’s standards, he would probably qualify as a sex addict.


Cram - 12/5/2003

NYGuy,
I think once again, we have come back to marriage as a psychological connection v. marriage as a government recognized tax incentive.

No one is stopping gays from living together, just as nongays can. No one is stopping gays from dating, just as nongays can. However, when it comes to marriage, the fact is that married couples recieve substantial government benefits, from tax breaks, to adoption rights, to inherritence rights, etc.

If the problem is that government should not get involved, sign me up! However, the government IS involved. That is the issue.


NYGuy - 12/4/2003

Cogito,

Objections to gay marriage on the grounds that marriage is historically one fixed thing are hard to support--the evidence, from history AND from the Bible, is against such arguments.

NYGUY

Setting up straw men and knocking them down does not prove your point.

The question still remains how are same sex couples discriminated against. Living in loving relationships is something both heterosexual and same sex couples do. Who is stopping them? No one. Actually the Supreme Court says that is legal.

Let us stop arguing about marriage and tell us what is it that same sex relationships lack that heterosexual live in couples enjoy?


cogito - 12/3/2003

Marriage is not a timeless, unchanging, ahistorical thing. It has evolved and continues to evolve. If marriage really were a tradition bigger than history, Bush would have 6 wives, like an old testament patriarch. Polygamy was still legal in the US into the 1850s. Now it is not. We have redefined the meaning of marriage. Similarly, we now regard marriage as primarily a romantic union between consenting, freely choosing adults. Historically, marriage has been seen largely as a system of property transfer and clan alliance. Anyone remember the victorian tradition of women referring to their husbands as "Mr."? Once marriage came on a condition of dowery--now it doesn't. Once marriages were arranged by parents--now they are not.

Objections to gay marriage on the grounds that marriage is historically one fixed thing are hard to support--the evidence, from history AND from the Bible, is against such arguments.


cogito - 12/3/2003

Compare it to desegregation--in 1964, a majority of Americans , a narrow majority, probably would have been against desegregation. But the court, in 54, recognized that there was no legitimate constitutional ground for segregation, even though custom enshrined it. Similarly, the Mass. court has pointed out that there is no constitutional basis for denying the benefits of marriage to gays, even though custom has reserved marriage to heterosexuals only.

Also in 1954 it was clear that public opinion was changing--Jackie robinson, the desegregation of the army, the popularity of entertainers like Nat Cole, all suggested that public opinion was moving agaisnt segregation. So too did the steady progress the NAACP had made in local anti discrimination cases. Similarly, we have openly gay, popular characters on TV, and we have a long chain of legal cases making discrimination problematic. So even if the court was narrowly ahead of the majority, it clearly reflects both the constitution and the direction of public opinion.


NYGuy - 12/3/2003

Cogito,

a reasoned response. Thank you. I don't play the "perfect game". Yes human relations are complex and fate has a way of changing things. In my mind the fact that a mother or father or even both parents die does not make the concept of marriage invalid. The fact that there are bad parents doesn't change the concept either. The point is that organizaitons over time have concluded that marriage is beneficial for the society and its future generations, and is practiced in just about every country in the world, althoug I admit I have no statistics to back this up.

Polygamy is somewhat of a problem but it still basically conforms to the idea that even in a household with many wives or husbands (if there are any), the children are still the main focus and the hope of the future. What I have heard polygamy is not an easy relationsship and usually put a great burden on the husband. :)

I would have to admit that at this point I believe religion, as well as public outrage have made polygamy an unacceptable union.

Beyond the above I can only say that the US has become an open society for all types of couples and does not discriminate against any type of unions, in my opinion. I also have no doubt that there will be pressure for same sex marriages for many years into the future. It will be interesting to see the outcome. As I said, I would vote a gainst it.

Cheers


NYGuy - 12/3/2003

Cognito,

Where one starts determines where one ends up. Please note that I am not arguing that homosexuality is against nature. Rather I start with the idea that over the centeries societies have determined that a stable family life between a male and a female are in the best interest of the society. Not much has been discussed about children, but my experience has shown me the important of having both a father and a mother in the home.

Homosexuals have won the battle they wanted which is that they not be regarded as something against nature. The supreme court has also said they have a right to private behavoir. As such they become as normal as heterosexuals. For example now that feminist has made sleeping around a normal part of life we have all forms of loving relationships which do not involve marriage.

As such I still believe that excluding these non-married couples, is in the best interest for our country and marriage should be defined as a joining between a man and women. As such no one is deprived of their freedoms and we have a policy that benefits our coutry over the longer term.

Married couples are now penalized, particularly if they get a divorce due to a long drawn out process. People who live together just have to say it is over, no fuss, no muss.

Let us not open up a pandora's box. Just watch the lawyers on TV. As had been pointed out a lawyer is not interested in morality or justice, only in wining. And they go to some extreme, convoluted reasoning in presenting their cases. Just look at the decisions we are getting now as judges want to make the law not adjucicate in the court room.


cogito - 12/3/2003

with luck, the massachusetts precedent will spread.


cogito - 12/3/2003

The assumption around here seems to be that marriage has always meant a man and a woman, meeting in romantic love to raise children. This is historically doubtful. For example, polygamy--common in many parts of the world still, sanctioned in the old testament in a big way. One husband/multiple wives hardly conforms to the model of marriage being advanced here, but it was legal (and practiced) in the US as late as the 1850s. Also it is extremely easy to argue that the fundamental point of marriage was property exchange--why else was marriage "arranged" and heavily encumbered by dowery expectations.

For a historical example of "traditional marrigae," I point you to ben franklin's autobiography. Both his parents married twice. Ben's only real mention of his mother is one line "she suckled all her nine (i think it's nine) children." There is absolutely no affection in his account of either--maybe a tiny bit in his account of his father, but not much. Ben himself aimed to marry his wife deborah reed, he frankly admits, because of dowery expectations, and later dumps her and aims for someone else with a larger dowery. When that deal falls though, he returns up with deborah. But note, you defenders of "traditional marriage", that he never married her and that they raised his illegitimate son by a different woman. Read franklin's authobiography--it gives a very different view of "traditional" marriage. or read Ulrich's "midwife's tale." It is very easy to prove that marriage is primarily a strategy for property transfer.

I'm not arguing that's all it is, or was. But marriage is not some timeless unchanging institution. If it was, George Bush would have six wives, like an old testament patriarch


cogito - 12/3/2003

Laws about marriage reflect public thinking about marriage--in a democracy, it's always that way. Should there be a high demand for incestuous marriages, and should a large number of people agree, then there will be incestuous marriages. Are you really worried about it? I mean, it seems unlikely. But the point remains--our laws are not written in nature --there are no traffic lights in nature, no tax shelters, no regulations--and they aren't written with all that much clarity in the Bible either--thou shalt not kill, except in the parts where killing's written about with approval, like when Davis kills goliath. Our laws are reflections of popular thinking, more or less. That's the point of democracy. I can't for the life of me figure out why polygamy is illegal, for example. It's in the Bible, after all, in a big way. My guess is it will be legal in twenty years

If you are really sure that homosexuality is contrary to nature, then why worry? If it's true that it's "un-natural," then homosexuality is an abberration destined to vanish, and certainly won't spread.

Personally, i'm disappointd that gay people are no more imaginative than straight people and are pressing for boring conventionality.


NYGuy - 12/2/2003

Josh,

This is one version of the old anti-gay slippery slope argument, behind which is the assumption that if "society" allows gay people equal rights to have sex and relationships to those of straight people, then it must allow every other presently prohibited sexual practice also. Another variant is that if homosexuality is allowed, so must all other immoral practices, including every manner of violent crime.

NYGuy

I believe just about everyone on this post tried to be reasonable about the discussion. Injecting bigotry and discrimination does not add anything to the discussion.

I have explained the normal interaction with gays and lesbians that I, my wife and my children, who live in NYC, have had with this group. Gays work daily for my wife, her students are sometimes gay, our friends are gay and we visit them and they visit us and have celebrated holidays together, we have neighbors who are gay and when I go to work I encounter gays. We deal with each other with respect both as people for for their talents. So your argument that if we don't agree with your view of gays, my family is a bunch of bigots.

For someone who tries to engage in reasonable debate you have to drop into the gutter. Dan has already discussed the next step in this evolution. Gays he says can adopt children and if they get married they will adopt many more. So you see we are on a path from, "We only want to be left alone and not discriminated against to we want to adopt and raise children and we have other demands for special benefits." And these arguments are going to be raised by lawyers. If we move to these next levels on the slippery slope how do you stop it. After all the basis of the marriage is a loving relationship which also occurs between one man and many women, one women and many men, brothers and sisters, mothers and fathers and their children. Are you then going to be the arbitrer of future of this trend?

The supreme court has said that individual are free to act with out interference in their homes. So same sex living together is and has been going on for many years. So the claim of being denied a loving relationship is bogus. So this is not about marriage it is about much more.

As Dan said this was a good discussion in which people with convictions presented reasons for their position. Injecting gay bashing and discrimination is the last area of defense for one who has nothing to say.


Josh Greenland - 12/1/2003

"If using the 'Rational Basis' test allows a man to marry another man, then so can he marry his own sister, or take multiple wives. No rational basis difference."

This is one version of the old anti-gay slippery slope argument, behind which is the assumption that if "society" allows gay people equal rights to have sex and relationships to those of straight people, then it must allow every other presently prohibited sexual practice also. Another variant is that if homosexuality is allowed, so must all other immoral practices, including every manner of violent crime.

Sorry, it didn't make sense in the past and it doesn't now. Slippery slope is a logical fallacy, after all.

".....how did it come to this???"

It's your fantasy, you tell us.


Frisky Male - 12/1/2003



LET'S HEAR IT FOR THE SISTERS!!!


Dan - 12/1/2003

Good thread. What I would add is that there is a difference between the law, which has a secular purpose (social stability) and belief systems, which have spiritual and/or other purposes.

Legally, therefore, if gay marriage helps maintain stability, I believe it is a valuable tool. Traditional marriage does have the benefit of a long history, but the legal aspects of it are there for social stability, at least partly for family purposes. Since adoption has been legally recognized within the gay population, there is no reason to exclude gay marriage from the point of view of stability; in fact, if gay marriages are allowed, remaining prejudices against gay couples adopting become less viable, making adoption more common.

But, good thread!

Dan


Cram - 12/1/2003

rg,

1) "Is Massachusetts going to re-instate slavery?... I realize this is a rather silly argument. I hope it hilights the ridiculous notion that the majority of Americans are always wrong and that right is when a few liberal activist judges create (as opposed to interpret) law."

I don't think anyone suggested that the majority of Americans are always wrong, however I would challenge the idea that a) only liberal judges are activists, and b) Judges don't by their very nature make the law.

One example: This week, the Supreme Court is going to hear a church-state case. Guess what the Constitution says about this issue? Nothing. Guess what the court will rule? Something. Either way, they will be making law, and there are a lot of Conservatives that vote the same way.

2) "I would like to see the gay marriage issue passed through the legislative process. If gay marriage in one state is to be recognized by all states that would mean the Federal Legislature."

I would as well. However, the Constitution was designed to take effect even if the majority is against it, that is the nature of our democracy, it is not always majority rule. If MA recognizes gay marriage, and all states must, you have 2 choices: Amend the constition, or accept the reality of our system of government.

3) "Do the people of Massachusetts get any voice in this decision? If so, let their elected represenatives hash it out."

If it is a Constitutonal issue, they have no voice in the issue other than to amend their Constitution. Again, it is the courts who say what the Constitution is, not the people. Sometimes it sucks (Plessy v. Fergesun) and sometimes it doesn't (Brown v. Board of Education).


rg - 11/30/2003

"Massachusetts courts have thus, in two striking cases, shown themselves to be willing to swim against the popular tide. They have seemingly challenged the will of the majority, the fundamental source of authority in a democracy."

Is Massachusetts going to re-instate slavery?
I mean since the majority of people in the US are against slavery and the impression I get from the article is that the majority is more or less a pack of idiots, wouldn't it be the height of intellectual enlightnment to once again "swim against the tide" ?

Before anyone replies, I realize this is a rather silly argument. I hope it hilights the ridiculous notion that the majority of Americans are always wrong and that right is when a few liberal activist judges create (as opposed to interpret) law.

I would like to see the gay marriage issue passed through the legislative process. If gay marriage in one state is to be recognized by all states that would mean the Federal Legislature.

Do the people of Massachusetts get any voice in this decision? If so, let their elected represenatives hash it out.







rg - 11/30/2003

Repugnant?
"If you don't want to be called a bigot, I'd suggest not advocating or supporting policies that, prima facie, advocate bigotry. "

Derek,
I believe this belongs to you.


rg - 11/30/2003

"If you don't want to be called a bigot, I'd suggest not advocating or supporting policies that, prima facie, advocate bigotry. "

Derek,
I believe this belongs to you.


rg - 11/30/2003

So long as the law said that no one may marry their own sisters or take multiple wives, there is no problem. It is only when the government says that only a certain group of people may practice certain rights that Constitutional issues arise.

Cram,
seems your logic supports Davids point.
Use the "sister" in this argument.
Current law does allow a "certain group of people" to marry the sister.. all non-family members (in keeping with the topic, all single male non-family members are eligible).
The girl's family members ARE being discriminated against in that they are not allowed to "practice certain rights" granted to other members of society.





NYGuy - 11/30/2003

Good response Cram. But I think this is a long term argument even if MA rewrites its constitution and it will be with us for many years to come.

I would just add that my wife is a muscian and we daily interact with gays. One of the musicians was an extremely talented accomplish who played for Metropolitan Artists. He was very close to our family and adored and my children called him Uncle. We were never sure of what he died of, although it was respority. Our guess is he was one of the early victims of aids. He also had a live in lover whom he adored. And we have attended funeral fors young talented gay men who died of aids.

Or next door neighbor inherited millions of dollars, as well as his apartment, from the man he lived with. And in NYC which I think may be the most integrated society in the world there is a constant interaction with homosexual men and women.

My disagreement with same sex marriage is that it is not necessary and will not be in the best interest of our society. The early argument that was proposed by gays is all we want is to be left alone. This has been reaffirmed by the Supreme Court.

We also have many heterosexuals living together and some, as in Hollywood shun marriage and think it is unnecessary for a fulfilling life.

So, I still don't understand what is being demanded. Today gays and their partners want to tell the world about their so called new found freedom and their joy in living together. What else is there?

Always good to hear your views.


Cram - 11/30/2003

NYGuy,
The Constitution of the United States contains a "full faith and credit" clause, which means that contracts made in one State must be honored by all states. This has been interpreted over the years to include marriage, and it is why you and your wife could move from state to state without having to get re-married.
(In fact, now that Canada has recognized gay marriage, and we recognize Canadian marriage contracts, you can be sure to see this issue addressed in the coming years)

IF the MA Constitution is interpreted by the MA Supreme Court as mandating same-sex marriages, and MA legallizes it, any homosexual couple can travel to MA, get married, and then return to their home state, where the marriage must be recognized.

You say that "The Constitution is built upon common sense and lessons we have learned from the past" but it is also learned through different experiences.

For example, the 8th Amendment ban on cruel and unusual punishment prohibits certain things that were legal in 1789, freedom of speech and or religion have been re-interpreted over the years, and issues like DNA testing, and police interogation have been continuously updated from their original intent by the Founding Fathers (to the extant that any intent can be discovered).

Of course, it is possible that the state of MA will re-write the law to be consistant with the court BUT not go so far as to recognize same-sex marrige. If that is the case, the course of this debate will be much more localized to MA and would not involve these far ranging implications.


NYGuy - 11/30/2003

Cram,

I did not know you were a lawyer and comment that the MA constitution was the law of the land evaded me in our conversations. If it is then you are right, everyone in the United States is out of line. It is just that I never heard that reasoning before.

I have tried to broaden this discuss but to no avail. Posters still limit their discussion to the U. S. as if it were the center of the universe. I am a big picture guy and when I speak of eliminating slavery, and respecting marriage, I am talking about it on a global basis.


The Constitution is built upon common sense and lessons we have learned from the past. I don't remember this was the major issue in the formation of our goverment. Our founders dealt with importantd issues that benefited all Americans and were not thinking of confirming entitlements to special groups as the courts have now imposed.

As I said, it is my opinion that the court said they had to turn in the decion they made based upon bad language in the law. They advised that the language be changed by the MA congress. That to me does not sound like an endorsement by the Constitution and the founders of our country.


Cram - 11/30/2003

NYGuy,
1)"Slavery... has been abolished because it does not benefit society and was not an efficient way to do business."

Not so. Slavery was abolished because the North won the Civil War, and impossed its prohibition on a defeated South.

2) "Beside this is not a constitutional issue and same sex marriage is not mentioned in the constitution."

Neither is marriage at all, and yet the government gives numerous tax benifits to it. Civil Rights is not in the Constitution, nor is abortion, affirmative action, or drug laws, and yet all of these are Constitutional issues. Why? Because the Courts have decided that they are and in our system of justice, it is they who interpret the law.

3) "the MA court told the legislation to fix it if they wanted to. Don't view this as a reason to change the society of the U. S."

In truth, I don't know what about the MA Constitution that invalidated this law, but if MA chooses to legalize same-sex marriages, guess what? The US will be changed because all other states will have to recognize it.


NYGuy - 11/29/2003

Cram,

Slavery is the only one that comes close to this issue and it has been abolished because it does not benefit society and was not an efficient way to do business.

Althoug slavery has been abolished, marriage is still the mainstay of all decent governments.

Beside this is not a constitutional issue and same sex marriage is not mentioned in the constitution.

Manmade laws are often flawed and the MA court told the legislation to fix it if they wanted to. Don't view this as a reason to change the society of the U. S>.

The constitution is a philosophical concept, that derived from centuries of experiences just as marriage did.

If you want to change the constitution and eliminate marriage then I would likely agree with and we could all live in an open society. The feminists already agree with idea and I have not spoken to any males who would disagree. It may not have worked for Rome, but we live in different time with smarter, educated people and maybe it will work now. At least it is fair to everyone and worth a shot.


Cram - 11/29/2003

NYGuy,

1) "If same same sex lovers now live together, and have for years, then what are they seeking by getting the government involved? Does it change there emotional relationship in any way?"

I won't disagree. But in that case, why not abolish ALL government entitelment programs for married couples? I would sooner support that then granting them only ser heterosexual couples.

2) "Using the constitution is just a straw man."

No, my friend, using the Constitution is essential in this case. Slavery, tourture, and arbitrary arrests have also been around sice the beginning of time, but it is that Constitution that you dismiss that prevents our society from practising those things.

3) "I ask how does same sex marriage benefit society, how much would it cost, and what advantages would it give such people who already live that life style?"

I would respond with this: the same as any other marriage. If you are unsatisfied with that answer, let us work to abolish all government recognized marriages, not just gay marriages.

4) "why do you want to discriminate against other human beings who also have strong emotional attachments. And if one person is so attractive that many others want to marry him or her, and the resulting community are civil law abiding citizens then why should they be discriminated against."

Your question is valid and certainly that is the sliperly slope argument many make. However, since I am dealing with the Constitutional issues, not the philosophical ones, it is enough for me to say that so long as gays are afforded the same right to marry, the equal protection clause of the Constitution would not forbid the prohibition to have multiple wives, so long as that prohibition was equally applied.


NYGuy - 11/29/2003

Cram,

If same same sex lovers now live together, and have for years, then what are they seeking by getting the government involved? Does it change there emotional relationship in any way?

As for marriage it has evolved from societies that pre-date the constition by centeries and just about all forms of government acknowledge its importance to a civilized society. Using the constitution is just a straw man.

The arguemt that some married women can not have children does not make the premise invalid for society. Neither does getting divorced. Unless everyone was childless and divorced then I don't believe there is a strong case to change things. Or if marriage and family has no value or meaning in society then abolish it. Many actually believe that is the way to go as same sex and hetero sexual couple are living together now without getting married and it is becoming a common experience in our society.

Since many religions have doctrines on same sex relationships you are asking the government to regulate peoples lives, and espouding a new type of religion for a select few. But, you are ready to discriminate and deny other "marriages" such as polygomy which also involves loving relationship, but which you say, with no reasoning should be illegal. I thought that was the case with same sex marriages.

Again, I ask how does same sex marriage benefit society, how much would it cost, and what advantages would it give such people who already live that life style? If you want the definition of marriage is to be broadened to include same sex loving couples then why do you want to discriminate against other human beings who also have strong emotional attachments. And if one person is so attractive that many others want to marry him or her, and the resulting community are civil law abiding citizens then why should they be discriminated against.


In a society dominated by legal talent, I don't feel comfortable with your suggesting that somethings are now illegal. Isn't that what this topic is all about, what is the definition of marriage and how far will that definition be stretched.




Cram - 11/29/2003

Even if God caused AIDS (an absurd suggestion to begin with) being gay does NOT by itself cause AIDS so it proves nothing.

Homosexual couples should have every right to have their marriage recognized by the state or else NO couple should have their rights recognized. The argument about AIDS is as off topic as it is foolish because regardless of what causes it, it is transmitted through sex, NOT through sexual orientation.

Some people on this site try to argue that allowing same-sex marriage would open the flood gates to allow everything. Why would that be? I have seen no evidence suggesting why same-sex marriage would also have to allow polygomy or incest, both of which are currenly illeal and are likely to remain so. What is the difference, some would foolishly ask? The difference is that homosexuality is not a choice according to most people, it is a condition one is born with. Thus there is no reason why there should be any slippery slope argument against it.

Others on this site argue that gays only want to reap the government benifits of marriage... well yeah... so what? Isn't that precisely what heterosexual couples are doing every time they get legally married?

Still other say that gays cannot reproduce. This argument ignors the fact that heterosexual couples can get married even if one or both are infertile, or beyond child bearing age. Ecen people with diseases that would transmit to their children are allowed to get married in this country. If you believe the only reason the state recognizes marriage is for procreation, let us amend the law to make sense for that aim because as it stands, there is so such justification.

The only question the courts need to consider, specifically the SC if it ever hets there is this: When the Constitution says that no state may deny to anyone the equal protection of the law, does that include marriage? To me, the answer is that it does.


Jonathan Dresner - 11/29/2003

Mr. Livingston,

The "sex with apes" theory was never very scientifically sound, and is now only popular in the right-wing White Christian press.

Current science suggests that the primate precursor to human HIV/AIDS actually was a prion in the brains of chimps, and that the disease made the transition to humans because of the unfortunate habit and necessity of eating our nearest animal relatives. Perhaps God's message is an ecological one, not a sexual one.

There's also a theory, very popular in Africa (though not, I believe, widely accepted in the scientific community) that suggests that a US-led vaccination program, using primate blood products, was responsible for the initial spread of the virus to humans. Perhaps God's message is against vaccinations by outsiders.

Your dismissal of the problem as moral rather than medical is just too easy. To single out one disease as God's justice casts serious aspersions on the morality of those striken with other illnesses, and that's just absurd (unless you're in the karmic transmigration business).

What's wrong with "sex worker"? Does the economic aspect of prostitution threaten your simplistic moralism?


Elaine - 11/29/2003

Not allowing homosexuals to marry is not discrimination, nor their civil or human right. Marriage is not based on who one has sex with although many people have this mistaken idea about it. Marriage is an institution that existed prior to institution of the state and instituted to ensure that the human race was propagated and to ensure a stable society. Homosexual sex can do neither. It is also a degradation of the each person who practices it because it is only a means of self-gratification, using another person to satisfy sexual urges. So not only would allowing homosexual to marry create an unsustainable and unstable society but it legalizes discrimination since people are just using each other and thereby their human dignity is being abused.

Rather than arguing about whether or not homosexuals have a right to marry, we should be expending our medical and scientific expertise to find out why there is this degrading and unnatural tendency for an extreme minority of human beings to have sexual inclinations towards those of the same sex. The real discrimination that exists towards homsexuals is blindly accepting that they are born that way when no study has ever determined that to be true.


Dave Livingston - 11/28/2003

Incorrect.

AIDS began in East Central Africa, evidently people there picked it up from the Great Apes, perhaps from sexual intercourse between men and Great Ape females & then was transported back to ythe human communities. It came to the Western hermisphere by way of bisexuals and homosexuals.

Yes, China has a big problem with AIDS via infected blood, but that is largelky a failure of its Communist government. But so does Rommania. In Thailand it is sexually transmitted, spread mostly by so-called sex workers. How's that for dodging reality, referring to prositutes by the innocent sounding term sex woirkers?

It is understandable that the seciular mind resents the intrusion of God into our affairs, but that doesn't deny the fact. In this case, in its origins and in thr West and in Africa it is more a moral problem than a medical one. The secular mind wants to deny that if people behave in a moral manner the proiblem will be resolved brecause if it is a medical one, man in his pride retains control of the situation.

Don't like God's puunishments? Tough!


Dave Livingston - 11/28/2003

Cram,

No direct biological conection between sex and procreation? Humbug! That some folks ignorant of biology do not understand what makes a gal pregenant doesn't deny the plain inherent purpose of sex. It is baloney to say otherwise. A problem of our urban culture is that people stuck in cities cut off from the reality of nature in the raw come up with really nutty ideas about nature.

For one thing, I tire of teary-eyed urban living environmentalist types attemptoing to tell us who live on the land how to husband it.

For another, it is tiresome too to hear urbanites whimpering about the evils of hunting. There is deer and elk in my freezer. Although it is a rodent, I'm fond of fried squirrel, especially with rabbit gravy. And roast wild duck is another favorite. I should forego those dishes because some urbanites who have their killing done for them in slaughter houses? Baloney!

As said before, I've lived most of my sixty-three years, save the years in school, in the Army & in a subburb of Denver after I was hit in 'Nam in a very small town or rural environment & never once in those years havree I seen or heard of critters regularly prascticing same-gender sex. Of course, in season a dog may mount anything, from another dog, a vaccum cleaner to one's leg, but that isn't the regular practice of same-gender sex. And there are instances that a male animal will mount another male to express dominanice, but that too isn't same-gender sex practiced as normal sexual gratication.

Just because someone wrote a study that claims in nature that same-gender sex is anywhere a normal practice doesn't necessarily make it sdo. As someone recently wrote the expression "Studies show" has become for the secular mind the equivalent tro the Fundamentalist's "Scripture says." In short, it is going to take one hellofa lot more than one study to persuade me that same-gemnder sex is a regular practice in nature, caz I've newver ever seen it in the U.S. Africa or SE Asia.


Dave Livingston - 11/28/2003

Ralph,

Wilco (military jargon for "Will comply."). But that doesn't necessarily mean I will agree with some or all of his conclusions.


Dave Livingston - 11/28/2003

Those whoi got AIDS from blood transfusions? They, like the people deliberately infected by a dentist living & working with AIDS & the gils in New England seduced by a New Yorker who knew he had AIDS are but a teeny-tiny minority of the folks infected by the disease, nor do their terrible experiences alter the fact that if one behaves in accordance with Christian teachings one is most unlikely to contract AIDS. Indeed, as pointed out earlier, the AIDS problem is not a medical one, but rather a moral one. It as is alcoholism is an avoidable disease, if one behaves in a responsible fashion. Nothing very complicated about that, save the onset of AIDS may, apparently usually does, occur years or decades after the infection.

For Pete's (St. Peter's) sake, someone, as in the case of homosexuals, wallowing in someone else's excreta shouldn't expect to become diseased? Sticking a portion of one's body into someone else's excreta is to be thought normal?

As a onetime smoker who more than eighteen years after kicking the habit still frequently craves a cigarette I can appreciate some of the discomfort an alcoholic may sometimes face in avoiding the drug, alcohol, but the fact is if an alcoholic refuses to drink alcohol he or she will suffer no direct harm from the disease, other than perhaps a craving for the drug.


NYGuy - 11/28/2003

Steve,

You raise a good point. Redefining marriage to allow anyone to get married would then product the tempation for fraud. In the case of medical expenses it would be likely that marriages would be arranged between heterosexual friends, brother and brother, sister and sister, brother and sister etc so that one could benefit from the others medical benefits, government benefits etc.

We already see how much fraud there is in the Medicare system.

Since same sex couples now live together, the only reason for getting married is to get benefits for the partner that are not available to any working mom, single heterosexual, elderly parents, etc.

Wouldn't it be great if we could all marry our mother and father so they could use our medical benefits. Hmm. Maybe they are on to something.


Steve BRody - 11/28/2003


I asked the question about same sex hetero marriage as a serious question, in the belief that if same sex unions are allowed, some day two hetero best friends who don’t want to settle down just yet with a member of the opposite sex will insist on their right to the benefits of marriage, while engaging in their dalliances with members of the opposite sex.

Some do not seem to have a problem with this.

I don’t have a huge problem with same sex unions. Just a vague uneasiness about mucking around with an institution as old as marriage, while at the same time reducing the question to little more than argument about who deserves the “benefits”.

I don't know what the ultimate effect on the institution of marriage would be if it changed so radically. That is what concerns me. Anyone who is not concerned, should familiarize themselves with the various social pathologies that exist in social groups where marrriage is not a strong institution.

I don't know, I don't know...



J. Caramello - 11/28/2003

Why bother with all this nonsense, let everybody to whatever in Hell they want now instead of waiting for some federal judge to tell them its all right. Eventually nothing will be illegal and illegality will be considered as discrimination against some "victim group". What a lot of garbage. There is not a dime's difference between homosexuals "marrying" each other than in brother/sister/mother/son/father/daughter marrying one another or having ten wives or marrying the family cat. Who really gives a damn anyway except a bunch of wild-eyed religious fundamentalists, judicial nut cases and raving homosexuals. We have a lot of real problems in this world such as wars where people are getting killed. Let's forget about homosexual marriage for a couple of minutes and concentrate on things that are really important.


NYGuy - 11/28/2003

Since the beginning of time codes have developed so that mankind could procreate in a civilized way and in a way to protect the family and provide a stable society. This was before the Constitution, and the definition has carried to this day. .

Even with its imperfections the concept of marriage is still necessary for a stable society.

Since the Supreme Court has already ruled that what people do in the privacy of their home is fine, than there does not seem to be any reason to change the wisdom we have gained about marriage over the many centuries.

It seems that single-sex couples have the right to live their lives as they see fit. So it is difficult to argue that they have to fall under the current male-female marriage laws that benefit the total society and the nation.

Same sex couples have lived together over the centuries and shared their love without the befit of a marriage. They have taken care of each other in sickness and health, they have been able to pass on their fortunes to those they live with along with many other benefits that both married and non-married individuals have. Why then is it necessary to establish a separate relationship that does not fit into the current concept of marriage and society? How does it benefit society and does it cost society anything?

Some call for equal protection. Perhaps we should abolish marriage all together if it has not meaning or importance for society. Then everyone would be equal and do as they please. MOther, daughter, sister, cousins, children, etc. All should then could be treated equal in their wish to make a life for themselves.

Could you explain what your wife is saying. “And, as my wife commented, if AIDS is the wrath of God, then lesbians are the Chosen People.”


Jonathan Dresner - 11/27/2003

Dave Livingston preached: "To those who bleat, He's a God of love, He is Love" my response is He is also the God who destroyed Sodom & Gormorrah, warned Lot & his wife not to look back & He is the God who socked it to the Egyptians when their king refused to let His people go. In short, His love sometimes is expressed as a tough love."

Funny. The religion which most closely cleaves to the Old Testament God, Judaism, evolved beyond the idea of God's manifest justice centuries ago. It is our job to create justice in the world, and now that it is our job, God pretty much stays out of the worldly justice business. Final justice is beyond this world. God's hand in the world is subtle, which I don't think can really be said about the AIDS epidemic.

And, as my wife commented, if AIDS is the wrath of God, then lesbians are the Chosen People....


NYGuy - 11/27/2003

Marianne,

You know you can't discriminate and if you work you will see signs put up in many locations that tell you you can't. So if a gay, black, women, tranversite, etc. works for a company they all get the same benefits. What is it that you don't understand about the law?

We are also concerned about a stable society and stable families and so societies promote the idea of marriage, which is a male-female relationship. The fact that not all marriages work out does not invalidate the idea of trying to achieve a stable society and family life. This is nothing new it has been going on for thousands of years.

So where do you find businesses discriminating?


Marianne - 11/27/2003


Then the evil is in the employers who deny workers a living wage, who export American jobs to slave shops in other countries and refuse to extend health benefits to their employers. Their greed in refusing to provide reasonable benefits is behind this rush to legitimize gay unions?

According to your premise, if business was acting in a responsible way, doing the right thing by ALL its employees, gay people would not want or need to get married?

Interesting point. I hadn't looked at it that way...


Jonathan Dresner - 11/27/2003

Dave Livingston spouted "AIDS first struck promiscous homosexuals, then it stuck another set of people abusing their bodies, druggies and then when it finally moved into the hetro community it again struck those who played around."

Actually, the most common route of transmission both at the beginning of the epidemic in Africa and today was heterosexual intercourse. Homosexuals were the third major group to be infected, after sub-Saharan Africans and Haitians.

One of the most common transmission routes in rural China is platelet donation centers, where blood donors' blood is mixed and returned (sans platelets) without being purified.

Yes, bad habits contribute to the spread, but any attempt to see the justice of God manifest in the world is, honestly, stupid.


Jonathan Dresner - 11/27/2003

Mr. Brody asks, quite seriously, "If we are to allow same sex marriages, will they be reserved for gay and lesbians only?"

There's no sexuality test for mixed-sex marriages, so why should there be for same-sex marriages. Homosexuals have been entering into heterosexual marriages because of social pressure and legal convenience for as long as the government has been involving itself in the marriage business (less than two centuries, by the way).

If a pair of heterosexual men or heterosexual women want to be able to share the legal and economic benefits of union, why not?

Actually, that's a great "equal protection" argument in favor, I think.


Nancy - 11/27/2003

Thanks for all your comments, both kind and snarly.

1. We did have a religious ceremony about 20 years ago. Obviously, it helped.

2. My partner and I have worked without pause (except for my going to college and grad school) since the 1970's. We are both respected members of our community and do work that makes contributions.

3. She has no dental insurance, but I do. Her medical coverage is not all that great, either. Like many other Americans.

4. My coworker's husband is on her dental insurance. We do exactly the same job.

5. My partner and I have been parents to a child with Hiv, from infancy to preschool age, when he died. He was a wonderful boy and we shared a beautiful life with him, albeit too short. When he came to our home, few people would take care of these children.

6. We have made other contributions to other people's children, including helping raise one and giving some financial help to others.

7. She will get her teeth fixed eventually, just not on my dental insurance, which would be the fair thing.

Finally, if two straight guys wanted to marry (which they probably wouldn't) they should be able to. Isn't it true that many straight couples have made "marriages of convenience" throughout history? Not all legal marriages have been based on love, let's face it.

I look forward to reading your comments.


Ralph E. Luker - 11/27/2003

Dave, Read Cram's responses to your certitudes carefully. There is much for you to learn in them.


Steve Brody - 11/27/2003


Dave, my question was a serious one.

If we are to allow same sex marriages, will they be reserved for gay and lesbians only?


Cram - 11/27/2003

Dave,
1) "To the best of my knowledge, same gender sexual practices do not exist on a regular basis in nature outside of mankind."

In fact, there are many species that exhibit homosexual behavior, or more accurately bisexual behavior. In some cases, this is because some animals can’t tell the diofference. There is a book (I must confess I have not read it) called Biological Exuberance: Animal Homosexuality and Natural Diversity by Bruce Bagemihl that tries to explain this pattern.

2) "After all, the biological purpose of sex is pro-creation. Any sex practiced that denies the possibility of pro-creation is by definition a perversion of the natural law."

Actually, evolutionary psychologists believes that while human beings are designed to want to procreate, it is not a direct connection. According to this theory, we are only programmed to want sex, not consciously realizing that the purpose is for procreation, that is why it is designed to feel so good.

3) "My personal guess is that AIDS is a scourge visted upon us by God to punish those most opposed to His will in matters of sexuality."

What about all the people who got AIDS from blood transfusions? Was God punishing them? How about spouses whose loved one cheated on them and gave them AIDS? What did they do to earn God’s wrath. Furthermore, couldn’t one make the same argument for all diseases? Cavemen and ancient civilizations probably thought that all natural disasters were punishments from the Gods. The next time you catch a cold, or know someone who gets cancer, think about it. Furthermore, why does God only punish that sin? Why not give AIDS to all murderers or rapists?

4) "My bet is that if medical science in defiance of His will derives a vaccine that that will permit us to practice sexual sins without fear of AIDS then an even more terrible scourge will be visited upon us."

People once thought the same would happen if we performed autopsies, or researched vaccines at all. The next time you take medicine for a sore stomach or a headache, think about how you are defying the natural order of things.

5) "The secular mind may not like this understanding of the world, but the plainm truth is if people'd behave according to His laws re: sex, they'd not become sick from sexually transmitted diseases--fact."

What about His other laws? The ones that deal with how to treat slaves? How about keeping the Sabbath? Do you do any work, drive somewhere on Saturday, which is the original Sabbath? How many animals do you sacrifice on any given day? After all, it is his laws!


Dave Livingston - 11/27/2003

Once again I by & large agree with NY Guy, but Steve Brody's query, "Should two straight guys..." set me howling.

In contrast to Oscar & perhaps some others, I do indeed have a problem with permitting homosexuals (& lesbians)adopting children. Moreover, these weird people had best stay away from my kids & their kids.


Dave Livingston - 11/27/2003

NY Guy,

I'm not going to jump all over you, because I by & large agree with your assessment. But on the other hand, why shouldn't homoseuals seek such benefits? As a priest of our diocese more or less wrote in a letter to our local paper, homosexuals have observed many marriages become nothing more than short-term contracts made for temporary convenience via easy divorce, why should't they with their own temporary arrangements seek the same benefits?


Dave Livingston - 11/27/2003

IMO the genetics angle in support of referring to homosexuality as normal is far overblown. From my perspective as one who has lived most of his life in rural environments, here in the U.S., in West Africa, albeit for a mere two years & in Indochina, albeit a mite less than two years. To the best of my knowledge, same gender sexual practices do not exist on a regular basis in nature outside of mankind. A Q Mountain Lion, Grizzily Bear or rattler, you gotta be kidd'n.

Those of us who live in the bonnies observe this does not exist among the lower orders. To the objection "Man is is not of the lower orders of animals" I say, "That's my point." It is only by rationalizing, in his head, that man can justify homosexuality is normal. After all, the biological purpose of sex is pro-creation. Any sex practiced that denies the possibility of pro-creation is by definition a perversion of the natural law.

How may it come as a surprise that AiDS has been visited upon us? My personal guess is that AIDS is a scourge visted upon us by God to punish those most opposed to His will in matters of sexuality. For Pete's sake, how obvious must it be made? AIDS first struck promiscous homosexuals, then it stuck another set of people abusing their bodies, druggies and then when it finally moved into the hetro community it again struck those who played around. Quite simply, the odds were and are if one confines one's sex to the marriage bed one will not contract AIDS. Why is that plain fact made complicated? The answer is that defiant man wants to practice his sins without paying the consequences.

The solution to the AIDS problem is straight-forward, obey His will, but as in the Garden of Eden, it is man's pride, his assumption that he is equal to his Creator that has gotten him in trouble. Really, it is clear as a bell.

Uganda is that African nation struck by AIODS that is having the greatest success in bringing the disease under control and it isn't relying upon drug cocktails nor condoms, but rather the message of the Christian faith, urging that sex be practiced only in the marriage bed.

My bet is that if medical science in defiance of His will derives a vaccine that that will permit us to practice sexual sins without fear of AIDS then an even more terrible scourge will be visted upon us.

To those who bleat, He's a God of love, He is Love" my response is He is also the God who destroyed Sodom & Gormorrah, warned Lot & his wife not to look back & He is the God who soked it to the Egyptians when their king refused to let His people go. In short, His love sometimes is expressed as a tought love.

The secular mind may not like this understanding of the world, but the plainm truth is if people'd behave according to His laws re: sex, they'd not become sick from sexually transmitted diseases--fact.


NYGuy - 11/27/2003

If we understand this topic is all about benefits perhaps people will look at it differently. For example, if you have a sister and her husband dies leaving her with three childen, it makes sense for you to marry her so she and her children can get medical care and another benefits that your company gives you.

You have to agree that it is a loving caring relationship, just as you have in same sex marriages and if you don't sleep together and have sex then the question of incest disappears. Meanwhile your sister will be getting over $1,000 a month of benefits. And if she is close to 65 years old she can share your social security benefits.

The only problem is who is going to pay for it, the companies, the government , the taxpayers. Hell let the government pay they have a lot of money.

We are facing a brave new world.

Don't start jumping all over me, some slick lawyer has already figured this out.


Jesse Lamovsky - 11/27/2003

Prof. Dressner,

I believe there was a large-scale migration of African-Americans from the segregated South to the cities of the East, Midwest, and West Coast early in the century. That's how Watts was born!

No argument, certainly, on the iniquities of miscegenation laws, but to honest, even the most odious examples should be left to local authorities. Call me out on any errors I make, but I'd venture to guess that even most laws against interracial coupling were stricken down by state and local courts. Anyway, polls show at least a dead heat, if not a small majority against these types of unions. Show me a similiar poll in regards to interracial marriage.

Any tension in the anti-gay rights movement can be found in the split between libertarians and mainstream, Republican conservatives. Even the most traditional, religious libertarians (and there are many) want no part of any Constitutional amendment sanctifying (?) marriage. This is a bone- and not a very meaty one at that, since he has no intention of following through on it- Mr. Bush is tossing to the conservatives in his party who are starting to voice their displeasure with the Iraq War, and with the Weekly Standard crowd that dreamed it up.

At least, that's my amateur political analysis.




Jesse Lamovsky - 11/27/2003

Well, I'm not in business, so I've never been transferred, but I would guess that most state-to-state moves are job-related. There are companies that endow benefits on same-sex couples, right? Would those be the kind of companies that moved to states that didn't recognize these unions? Probably not. Yes, some oxen would be gored here. I realize that. I also believe the cases would be relatively few and far between.

And wait a minute- just how is marriage a "right", anyway? It's a pure choice. Sometimes people are inconvenienced by the choices they make. Should they be protected from the consequences of these choices by the government? If the Supreme Court extended the Massachusetts judgement over all the states, this would not be a case of the government protecting the rights of citizens. It would amount to the advocacy of a personal choice, and since when was that the task of the United States Supreme Court? The Supreme Court should have no power to strike down the Massachusetts decision, for that matter.

Anyway, if the object is pleasing people, or conveniencing them at any rate, what about inconveniencing the people of communities and states that don't approve of these standards and don't want to be goaded into accepting them? Quite frankly, in this case, there are probably a great deal more of the latter than the former. I'm not married and would probably make a lousy husband myself, so far be it from me to cast aspersions on the hearts of same/sex couples who want to tie themselves in holy, or tax-beneficial, matrimony. But there are people who are strongly apposed to these kinds of things, and they are motivated by reasons that should be respected, and if these people have the votes, they should be left alone. This isn't slavery. There are no Dred Scotts here. Local authorities deserve to arbitrate among themselves in matters like these. If people want to elect state and local judges that will allow them civil unions, they are free to do so. In Massachusetts, the people have spoken. Bully for them.





David - 11/27/2003


In any case, you are comparing gays who want to marry those they love with incestuousness. I find that, at the least, repugnant.

Even though you did not intend to do so, you just made a moral judgement against incest. Based on what, may I ask? An arbitrary personal choice on your part? Maybe a deepseated ancestral memory? Or are you just being plain ol' fashion "intolerant" of somebody else's lifestyle?

What would your multi-culti friends say if they heard you now !!!

It's amazing how you prove my point without even realizing it.


Stevew BRody - 11/27/2003


Should two straight guys be able to marry in order to enjoy the benefits of marriage?


Steve BRody - 11/27/2003

Should two straight guys be able to marry in order to enjoy the benefits of marriage?


Marianne - 11/27/2003


Mr. Hagedorn, you wrote:

In terms of biology, your marriage can not lead to the creation of children (except under unusual circumstances),while that of a heterosexual couple can.

In fact, many infertile heterosexual couples resort to the same kinds of "unusual circumstances" when they are attempting conception of children.

And there are plenty of cases of "grim statistics of social pathology" coming out of two parent homes and middle class and affluent communities.

But if "fatherless" is the issue, then children of two loving male partners should be twice blessed.


NYGuy - 11/27/2003

Derek,

"Plus, you do not have to wait for government to sanction your marriage, but to get the benefits that states (and the federal government) give to any straight couple that marries. I find it patently absurd that my status as straight gives me a winning lottery ticket for marriage and the benefits accrued therefrom, however irresponsible I choose to be with it, and yet a gay couple, no matter how loving, responsible, and committed cannot get rights that I can get from an ill-timed one night stand, a shotgun, and a justice of the peace."

NYGuy,

Since the beginning of time codes have developed to protect the family so that mankind could procreate in a civilized way. This was before the Constitution. We already see problems around the world with low birth rates which weakens a country and causes dramatic changes.

Dereks argument that male-female marriage is not a perfect system and therefore justifies single sex marriage does not really make sense. He, however, states that he really wants special benefits for single sex couples because of his feelings and therefore just forming a loving relationship is not enough. And as one person has said they can't get their teeth fixed because they are not married and probably never considered the option of getting a job.

Of course single sex marriage would likely lead to support for adoptions of children by single sex relationships and raises questions about what other type of relationships should be permited, and the effect on society.

I believe marriage, with all its imperfections is intended to protect the children and for procreation. Since the Supreme Court has already ruled that what people do in the privacy of their home is fine, than there does not seem to be any reason to change the wisdom we have gained about marriage over the many centuries.

It seems that single-sex couples have the right to live their lives as they see fit. So it is difficult to compare these freedoms to the current male-female marriage laws that benefit the total society and the nation.


Derek Catsam - 11/27/2003

What about couples who cannot have children? What about those that choose not to? Why should straight couples have these options while gay couples cannot? And why should a religious basis of procreation have anything to do with public policy on these matters. Plus, you do not have to wait for government to sanction your marriage, but to get the benefits that states (and the federal government) give to any straight couple that marries. I find it patently absurd that my status as straight gives me a winning lottery ticket for marriage and the benefits accrued therefrom, however irresponsible I choose to be with it, and yet a gay couple, no matter how loving, responsible, and committed cannot get rights that I can get from an ill-timed one night stand, a shotgun, and a justice of the peace. Maybe Bob Bar's first or second wife (or third) has the right answers.


Derek Catsam - 11/27/2003

Can I think of any reasonable reason? How about genetics. Few serious people assert that there is not something innate or heredetary or genetic about one's sexuality. This is why they are a particular category of people. The rational basis test is less important for me than the issue of strict scrutiny and suspect categorization. In any case, you are comparing gays who want to marry those they love with incestuousness. I find that, at the least, repugnant.


David - 11/26/2003


Yes, the world is getting "saner."


David - 11/26/2003


There is to my knowledge no discrete category known as sister-marry-ers.

Not yet, and can you give me any particular reason under the 'Rational Basis' analysis why it shouldn't happen? And the same can be said about polygamists.

That's the entire point.


Thomas Hagedorn - 11/26/2003

I am going to assume that you have already married in a church. There are churches that will marry gay couples and others that will perform a ceremony similar to a wedding. So, you don't have to "wait" for government to sanction your marriage.

In terms of biology, your marriage can not lead to the creation of children (except under unusual circumstances),while that of a heterosexual couple can. One of the reasons that heterosexual marriage is given a special place in our probate and tax law is its importance for the lives of children. In our inner cities and poor rural areas, where unmarried childbirths are becoming more and more the norm, the grim statistics of social pathology for fatherless children illustrate why children need a mother AND father.

Perhaps a compromise would be that gay couples that have children or adopt be allowed to legally marry. I would have no problem with that.


Thomas Hagedorn - 11/26/2003

I am going to assume that you have already married in a church. There are churches that will marry gay couples and others that will perform a ceremony similar to a wedding. So, you don't have to "wait" for government to sanction your marriage.

In terms of biology, your marriage can not lead to the creation of children (except under unusual circumstances),while that of a heterosexual couple can. One of the reasons that heterosexual marriage is given a special place in our probate and tax law is its importance for the lives of children. In our inner cities and poor rural areas, where unmarried childbirths are becoming more and more the norm, the grim statistics of social pathology for fatherless children illustrate why children need a mother AND father.

Perhaps a compromise would be that gay couples that have children or adopt be allowed to legally marry. I would have no problem with that.


Derek Catsam - 11/26/2003

I would like to second Jonathan's points. Why should a gay couple from Mississippi have to move to get the same rights and priviledges as a straight couple who may have just moved to the state? Federalism is all well and good, excepopt when it is a guise to allow states to abrogate the Constitution. Thus when people use the old "state's rights" argument, the logical question I have is" the state's right to do what! Atates do not have the right to deny constitutional rights, to discriminate against categories of people, and to trump federal mandates. Why should someone who is gay have their options in the United States sverely limited based on which states allow their marriage to be sanctioned and which do not?


Derek Catsam - 11/26/2003

Nancy --
What does it say about a country in which I could go to Las Vegas right now, get loaded, and marry any gal that comes along, get divorced soon after, and do it all over again, but your three-decade long relationship would not receive the same sort of sanction as my Vegas nuptials? Egads.
Have a wonderful holiday.
dc


Derek Catsam - 11/26/2003

How "marrying your sister" is an irrelevent point: We can safely qualify gays/homosexuals as a specific category of people against whom laws restricting marriages discriminate. There is to my knowledge no discrete category known as sister-marry-ers. Marriage confers certain very concrete benefits to people, and to deny that to a whole class of people is loathsome. If "the state" does so, I would also aver that it is unconstitutional. Those who shy away from this being called bigotry want to have their cake and eat it at straight weddings too. If you don't want to be called a bigot, I'd suggest not advocating or supporting policies that, prima facie, advocate bigotry.
By the way, I love that some of the chief spokesmen for the "Defense of Marriage Act" (I have seen all men thus far) are almost across the board individuals who have been divorced, sometimes multiple times. Bob Barr arguing for the Defense of Marriage Act is a level of irony almsot incomprehensible in its naked hypocrisy.


Frank - 11/26/2003

"So long as the law said that no one may marry their own sisters or take multiple wives, there is no problem. It is only when the government says that only a certain group of people may practice certain rights that Constitutional issues arise."

I think Bob is quarreling with your attempt to distinguish the two prohibitions. Consider these two laws:

1. No man may marry an individual with whom he shares gender.
2. No man may marry an individual with whom he shares parents.

The law says nothing about "only a certain group of people," and Bob's point was that it prohibits same-sex marriages to straights and gays alike. (Insert obligatory "sleeping under bridges" reference here.)


Jonathan Dresner - 11/26/2003

I'm troubled by the possibility of a patchwork of rights. Can you imagine the legal mess involved if some states refuse to recognize the marriage rights of other states? For example, what if an employer asks a married lesbian to relocate to a state which doesn't recognize same-sex marriage?

And not everyone really has the resources to uproot and move: was there a mass migration out of the segregated South? (and let's consider that analogy for a minute: miscegenation laws, anyone?)

I'm also curious about whether there is a tension in the anti-gay-marriage movement between the states-rights positions and the Defense of Marriage (a Constitutional Amendment has been suggested) tactics, or if they're just both convenient tactics?


Jesse Lamovsky - 11/26/2003

Actually, this situation is precisely why people shouldn't be so quick to bury old-time federalism for the new one-size fits-all centralized polity. Gays and lesbians to want legitimacy (or at any rate Caesar's legitimacy) bestowed on their unions can "vote with their feet" and go to Massachusetts, or Vermont, or any other state where same-sex unions are recognized. Residents of more conservative states can keep their traditional views of marriage- and their traditional marriage laws- intact. This is a good system. Now let's pray the United States Supreme Court, in all its faddish (though unconstitutional) wisdom, doesn't decide to get involved, a la Lawrence v. Texas.


Oscar Chamberlain - 11/26/2003

I agree entirely

May you and your family have a wonderful Thanksgiving.

Here's hope for a saner world

Oscar


Nancy - 11/26/2003

Please let me know when society is ready. I am not getting any younger (late forties) and my partner is even older. If I could put her on my insurance, she could get some dentures to replace her deteriorating teeth.
We have been together for almost thirty years. A lot has changed in terms of acceptance, but we do not have equality with straight couples. How can you think that is fair?
Finally, how would it hurt anyone for us to marry? We mind our own business, except when kids, old people, or others need our help.


Cram - 11/26/2003

1) “You just flunked Logic 101.”

I didn’t even know I was in the class.

2) “The current law, good or bad does not discriminate. Homosexuals can not marry someone of the same sex. Neither can so-called straights.”

So, I guess you don’t think slavery is discretionary, since it applies to all blacks?

3) “A large number of people, a majority in most polls oppose it when it is called marriage.”

I don’t disagree. What does this have to do with this NOT being discrimination?

4) Many of the opponents are sincere people who believe gay marriage will harm socierty.”

I don’t disagree with that either. What does this have to do with this NOT being discrimination?

5) “Ramming it down their throats will cause a massive backlash.”

You mean, like the Court did with segregation in the 50’s, and 60’s?

6) “Allow society time to adjust and do not mock their sincere beliefs as biggotry.”

I mock no one. I simply point out the fact that when people are not allowed to enjoy the same basic rights as other people because they do not share their sexual orientation, that is discrimination and goes against the Constitution as far as I am concerned.


Bob Greene - 11/26/2003

You just flunked Logic 101. The current law, good or bad does not discriminate. Homosexuals can not marry someone of the same sex. Neither can so-calles straights. Both gays and staights can marry people of the opposite sex. People of neither sex can marry siblings. The argument against it is the strain it will put on mainstream society. A large number of people, a majority in most polls oppose it when it is called marriage. Call it civil union and you can sneak it by. You can dismiss the opposition as biggoted but that will not get you anywhere. Many of the opponents are sincere people who believe gay marriage will harm socierty. Ramming it down their throats will cause a massive backlash. Just as when non discrimination laws morphed into race preferences cause a backlash amongst decent people who rightly saw that as reverse discrimination. Allow society time to adjust and do not mock their sincere beliefs as biggotry.


Oscar Chamberlain - 11/25/2003

The "Rational Basis" alone can run into problems on controversial social issues. You note one.

So can justification by faith (or gut pains) alone.

Shall we execute pagan priestesses, as the Old Testament called for?

Shall we tear down the basis of society by giving all our goods away and accepting poverty, as Jesus suggested?

Shall we ostracize people from our communities for violations of any number of religious precepts, as Paul indicated?

As it happens there are good rational arguments for accepting homosexual couples, arguments rooted in fairness and in the encouragement of monogamy, which for all its flaws is likely to be a more stable long-term structure for families in our society.

Also as it happens, there are no arguments against it that I know which do not eventually require justification by faith (or gut)
And I don't think that's enough to oppress people


Cram - 11/25/2003

David,
You ask, "If using the 'Rational Basis' test allows a man to marry another man, then so can he marry his own sister, or take multiple wives. No rational basis difference."

So long as the law said that no one may marry their own sisters or take multiple wives, there is no problem. It is only when the government says that only a certain group of people may practice certain rights that Constitutional issues arise.


David - 11/25/2003


If using the 'Rational Basis' test allows a man to marry another man, then so can he marry his own sister, or take multiple wives. No rational basis difference.

.....how did it come to this???

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