It’s hard to remember a less legal-sounding and more partisan-political-sounding judicial ruling since Roe v. Wade. The judgment rendered by federal judge Vaughn Walker on Proposition 8 yesterday is a pure mish-mash of buzzphrases. It’s bad law, and I can’t believe it won’t be overturned on appeal.
Here is some language from the ruling, excerpted by Allah yesterday evening:
Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.
This is political blather. “Singling out gay men and lesbians for denial of a marriage license?” Restricting the definition of marriage to a man and a woman “discriminates” against everything else in the material universe. It means minor children can’t get married in any way recognized by the state, because they’re not “men” and “women.” A man can’t marry his horse. A woman can’t marry her car. No one can marry the Sierra mountain range, a case of Budweiser, or his multi-season DVD collection of Burn Notice. A dog doesn’t get to decide to marry a cookware set – not even a top-of-the-line cookware set from Nordstrom’s.
Or, to be precise, you can declare yourself married to whatever you want, but the state isn’t bound to recognize it as “marriage.”
Defining marriage at all, for the purposes of law, is inherently a limiting act. Everything except the authorized parties to a state-recognized marriage is “discriminated against” when marriage is defined. It’s purely political – as opposed to the purported act of insisting on a politically agnostic legal distinction – to list gays and lesbians as the parties “singled out” for injury. Doing that is not a basis for invoking “equal protection,” it’s a basis for invoking a social division that gets people riled up, and diverts their attention from the hash being made of the actual principles at issue in law. It’s political demagoguery.
The primary issue in law is whether the people get to make the social definitions they are expected to live by. “Marriage” is a social definition. It is not and has never been a matter of personal choice – not when you want your marriage recognized by the society around you, and when you want it to have economic, financial, and legal meaning.
The effect of the Walker ruling is to say the following:
A. The people are not an authorized agent for defining marriage. That’s the effect of the “due process” argument: that the people, acting through the ballot initiative, don’t have the authority to make this decision for the purposes of law.
B. Definitions of marriage that don’t accommodate excluded permutations are inherently “discriminatory,” in the bad way that is constantly being triangulated in partisan politics. It’s not clear if the state can define legal marriage at all – states prohibit polygamy, for example, and marriage to minors under certain ages, and the intermarriage of close family members; and states require guardians to approve the marriages of the incompetent and marriageable minors. States don’t recognize marriage between a human and a pig, a parakeet, or a pizza. Or between a pig and a pig, or a pig and a parakeet. How much of this constitutes “singling groups out” for discrimination under the marriage laws?
In the end, the big question is: What does this ruling mean? Can the state define marriage? Or is it simply bound to recognize whatever someone calls a marriage? Not recognizing a “marriage,” for the public’s purposes, is inherently discriminatory every time it happens.
I have a feeling the Supreme Court is going to come through on this one for us. From a legal standpoint, Walker’s decision is idiotic.
Cross-posted at Hot Air.
The Optimistic Conservative 
There’s a reason the ruling is so logic-bending… THe judge is gay!
http://articles.sfgate.com/2010-02-07/bay-area/17848482_1_same-sex-marriage-sexual-orientation-judge-walker
Getting married to a case of Budweiser doesn’t seem like the worst idea. Would it be ok if we permit polygamy this instance? Budweiser wives don’t have much of a life span. It’d only be fair to permit a supply of several, if not endless, Budweiser wives.
“I have a feeling the Supreme Court is going to come through on this one for us.”
One more liberal on the court and the constitution means nothing, anything and everything.
Well he’s an all around idiot, in the spring he found for a Saudi charity tied to terrorism, because the
government didn’t give him more information
” Restricting the definition of marriage to a man and a woman “discriminates” against everything else in the material universe.”
Yes it does, where same-sex advocates are seeking to leverage the debate in their favor is in the following;
“The argument goes this way: if one accepts that being gay is not a choice, then the right to marry whom one LOVES is a legal right that is discriminatory to not allow to gays. That’s the equal protection part of the argument. Marriage to the object of your LOVE is a legally regulated process that the pro-same-sex-marriage group argues is a right that you cannot deny solely on the basis of sexual orientation.” neo-neocon
If the Supreme Court rules on the basis of the 14th amendment, then limiting marriage to heterosexuals is inherently discriminatory and thus unconstitutional, therefore abrogating the ‘will of the people’. As the majority cannot enact unconstitutional laws.
There is an unintended consequence to basing a legal finding upon the 14th amendment; it removes all legal barriers to plural marriage.
Bingo.
I think I need to go get myself a second wife.
By the way – can I marry my pet?
“. . .can I marry my pet?”
Only if he or she can say, “I do.”
“Proposition 8 fails to advance any rational basis in
singling out gay men and lesbians for denial of a marriage license.”
how is that going to be overturned?
as long as the state is going about issuing licenses for marriage, the state is going to have to defend the rules for issuance from challenge.
California is going to be marrying same-sex couples in future, like it or not.
I wouldn’t say that that this issue in itself would generate sufficient support for nullification, but as these outrages continue (abortion, health care, rule by administrative fiat rather than law…), the advance of judicially and ultimately federally imposed same sex marriage will likely be one of many grievances (one of the “long train of abuses and usurpations”) that will lead to the spread of nullificationism.
that nullification movement didn’t work out so well last time. at this point in US history, it’s ludicrous.
Oh, and I forgot Arizona.
Perhaps what the ruling class finds ludicrous, the country class might find plausible, even easy. Anyway, the ruling class seems determined to push things in that direction, and who can say no to the ruling class?
A funny thing about stretching a rubber band – it will almost always surprise you when it snaps.
it’s usually the old, dried-out ones that don’t do much stretching.
So, defining marriage as an institution tied (not invariably, but often) to preserving the human race and passing on society’s values to one’s progeny, as opposed to relationships that in the natural state will do neither, has no rational basis?
Well, not to a gay judge, I suppose.
so sterile people or people not wanting to have children shouldn’t be allowed to marry according to a cousin vinnie, i suppose.
That all heterosexual couples don’t procreate doesn’t affect the connection between marriage and procreation; same sex marriage, though, is the the deliberate severing of that connection. Is it really that hard to understand?
absolutely hard to understand how the connection between marriage and procreation can be severed by the conduct of people who don’t make that connection.
how do their thoughts and actions undermine your beliefs and freedom to act as you wish?
Marriage is not a question of the thoughts and actions of individuals, but a social institution that recognizes a certain kind of relationship as having a particular value and deserving special protections. Heterosexual sex leads to children; children need to be cared for; responsibility for such care needs to be conferred: marriage arranges that, and has therefore been deemed worthy of social support and sanctification. Perhaps the institution has become obsolete–maybe the whole gay marriage affair is a symptom of that, in which case the state should get out of the marriage business altogether. Let people express and publicize their love for each other however they like, let people who want public recognition seek it in their places of worship, and let lawyers help develop a new contractual regime for these more varied relationships. This is the direction same sex marriage moves anyway–it’s pretty obvious that there is no basis, other than “irrational prejudice,” for preferring any relationship (say, monogamous) over any other (say, polygamous). So, let’s just cut to the chase, and let people distribute themselves amongs institutions, on the one hand, that privilege the traditional means of conferring value and those, on the other hand, who reduce familial relationships to contractual ones. In other words, let’s find out if landlords, banks, private schools, employers, free of government harassment, prefer to rent to, lend to, admit and hire people in traditional or non-traditional relationships.
But that wouldn’t satisfy the same sex marriage crowd, even though they’d be perfectly free to do as they please. This gets us to the real point. The same sex marriage advocates had the chance to try and convince the American people of the justness of their cause. They rejected that democratic and respectful approach (which was risky but might have been successful over time) and chose to rely upon judicial imposition. The reason, I believe, is that they want gay marriage not merely enshrined in law, but recogized as a RIGHT; and the reason they want such recognition is to piggy back on the struggle to impose hate crime and hate speech laws and the broader atmosphere of moral intimidation those laws grow out of and support. Such laws can be written to outlaw and thereby socially stigmatize anyone who impugns the “equality” of any citizen, and it will become possible to apply that definition to anyone critical of homosexuality or same sex marriage. We can already see this in the determined effort of the left to make “homophobia” analogous and morally equivalent to racism, and to define “homophobia” as any view that impedes the most radical gay rights agenda. So, the struggle against gay marriage has merely become one more front in the struggle against what Angelo Codevilla calls the “ruling class,” who maintain their power by relying upon the least democratic elements of the society, like the judiciary, the public employee unions and the federal bureaucracy, determined to rule their opponents out of court as illegitimate.
If it is possible to defeat same sex marriage now and avoid the inevitable subsequent lawsuits demanding that several people be allowed to marry, that children living with their parents be allowed to marry (so the parents, say, can draw upon the child’s medical insurance, or vice versa), that roomates can marry so they can get a tax break, etc., etc. (what but irrational prejudice could oppose all this?), I, at least, would prefer that. But I don’t think the ruling class is presently in a mood to back off on anything–they are currently characterized by a dangerous combination of desperation and self-righteousness. So, what I outlined above is a fallback position which, with some alliances between social conservatives and libertarians, might be workable.
The respectful thing fer them nigras is to keep to their place till they got learned enough to where decent folks think that they can come into the big house.
Demanding equal rights, when we all know that they lack the necessararies to use them rights wise as us is so ….vulgar.
Them commies wasn’t all coming down here from New york City and agitating, none this would even be happening cause they was all happy enough we was lookin out for their best interests……
Yes, just keep pasting the terms and images of the civil rights movement on the same sex marriage movement (after all, we know how gays can’t go to the same schools, hold the same jobs, live in the same neighborhoods, use the same transportation, etc., as heterosexuals, how they are contantly asked to show their papers, beaten and lynched for stepping out of line…)–I do hope the Left continues with these Stalinist tactics. I think people are really getting sick of them.
And gays, of course, have been deprived of the right to vote since forever. The analogy is perfect.
hold the same jobs
went through the same thing with the opticon last year.
ask her if they’re were allowed to hold the same jobs, ask her if they could be open about their sexuality and hold the job that she used to perform.
you too young or too ignorant to know that homosexual conduct has been criminalized throughout the history of this country?
spare the talk of Stalinist tactics. it’s dumb.
One institution where expression of homosexuality is explicitly limited. Maybe for good reasons, but I doubt you’d be interested–it would be too hard to understand, I suppose.
The criminalization of homosexual acts is long gone, and nobody is agitating to bring it back. (No doubt you’ll know of some town in Mississippi where some local sheriff…)
There are plenty of people who don’t like gays, but violence against them is as proscribed and seriously treated as violence against anyone else.
Gays are free, they have all kinds of ways to stabilize their relationships, and they could easily devise more ways. Same sex marriage is not about increasing the freedom of gays–for some, it is no doubt a sign of recognition (but one that can’t be coerced, then); for the more politically savvy, it’s one more way of using the courts and bureaucracy to harass political opponents and control public discourse.
Stalinists in the 30s invented the political tactic of calling all political opponents “fascists”–American leftists have today added “racist” because it fits American conditions better. You can call it dumb, but it’s transparent–if they’re against the health care bill, call them racist. You see how naturally it came to you when an argument against same sex marriage was presented to you? It’s in the Left’s political DNA. I’m not expecting them to learn any new tricks.
you want to point out where it was that I called you a racist, buddy?
if you’re offending by my making a comparison in your attitude to the use of law to deny equal rights in this to the attitude that used the law to deny equality to “colored” people, it ain’t because I did something that Uncle Joe taught me to do.
it’s you using a dishonest tactic to attempt to deflect rather than to rebut.
Your second paragraph answers the question you ask in the first. Maybe the neo-Stalinists at The Nation taught you, how would I know? When I see something for the 1001th time, I assume it follows somehow from the first 1000.
I raised two issues: one, marriage as an institution, that will be affected in unpredictable and likely deleterious ways by its redefinition; two, the use of the judiciary to invent rights so as to impose policies opposed by the majority (plus refuting the claim that gays are oppressed). Your response?: shut up, racist. You haven’t even provided anything to rebut. I’m sure your views seem too obvious to argue–after all, a federal judge just said that only irrational and prejudiced people could disagree with them.
Not offended, though–quite pleased at the Leftist “epistemic closure”–dialogue with the Left is the last thing I’m interested in, and a serious discussion of these issues the last thing I expect. Regarding the Left, I just hope to do my little part to send it on the way to its ultimate extinction.
Right, you didn’t call me a racist; I actually did say you did in the comments you were responding to: you use “racism” as a template for addressing opposition to same sex marriage. (If someone says “Hitler would have proud,” they’re not really calling you a Nazi, but where’s the significant difference here?)
“Your response?: shut up, racist.”
Now, after a dozens comments, you decide that I’ve told you to shut up? I don’t think so, adam.
What i’ve said is that your complaint about the harm caused to the marriage by people not agreeing with your definition of the purpose of marriage is ill-founded and you’ve not the right to expect the state to grant licenses for marriage to only those people that meet your criteria.
your position is fine for you to follow and if others do not follow it, their behavior is not demonstrably harmful to you.
until you can show that the behavior of other people causes harm to persons, rather than offense to your ideas, the state has no reason to act to deny issuing licenses.
Either the state, then, will have to grant marriage licenses to any set of consenting adults who desire it (with no–irrational and prejudiced–restrictions regarding number or other qualifications–I don’t think you’ll be able to show how polygamous, group or incestuous marriages harm other individuals, rather than some “idea”);
or, the state will stop granting marriage licences.
Of the two, I prefer the latter–in the end, it’s simpler and less contentiuous, or at least it privatizes the complexities and contentions, so we can take one irreconcilable difference off the public plate. There seems to be a little movement in that direction already, and I think the onward march of judicially imposed same sex marriage will accelerate it. We’ll then see how the Ruling Class counters that.
By the way, my point was not that you, fuster, was telling me, adam, to shut up, here and now–I was simply identifying a mode of closure, the way the Left delegitimates ideas with which it disagrees. At least with your latest comment you made an argument, however minimal, and an argument which enables us to raise a new, potentially productive question: why, at this point, should the state still issue marriage licenses? Perhaps without the crutch of state establishment, the positive effect of the gay marriage movement will be force all of us to reflect upon how we want to construct, formalize and recognize our own and each other’s families. And this development might raise the question, “why does the state still…?” in a lot of other areas as well.
why does the state…..
property rights.
I’d be very glad for the question to be raised–with the growing reach and incompetence of the state, we will eventually find out what most people consider essential. I think property will be at or near the top of the list, but who knows–maybe the majority of Americans will decide the purpose of the state is to enforce same sex marriage.
Going off topic. . . It’s rare you hear a truly new idea about entitlements. But I think Newt Gingrich just mentioned a genuinely new and potentially good one about Social Security. He suggested that the govt should reduce income taxes on 62 year olds to incent people to keep working rather than start collecting. Right now all the incentives for lower and even lower middle income people are powerfully on the side of taking SS as soon as one turns 62. It might be possible to make a relatively significant impact on SS finances by reducing tax rates on incomes (of 62 to 65 year olds) between about $30K and $50K or so.
can one incent people non-surgically?
“your position is fine for you to follow and if others do not follow it, their behavior is not demonstrably harmful to you.
until you can show that the behavior of other people causes harm to persons, rather than offense to your ideas, the state has no reason to act to deny issuing licenses.”
I got caught up in other arguments, and failed to notice how bizarre, incoherent and arbitrary this is as a basis for determining the constitutionality of a law. There is an actual constitutional text, that does guarantee specific rights and allocate and put specific limits on government powers. Where is the place in the constitution that asserts that laws must only protect against specific harms to specific people (proven how? could I prove that littering harms me, and doesn’t just offend against some idea of cleanliness?) and cannot pass laws that only protect some conception of an institution? Anyway, I await the explanation of how 10 people applying for a group marriage license is harmful to fuster, and not just offensive to some idea he has.
You’re having a discussion with someone who believes the words of the constitution and its amendments mean precisely what the left wants them to mean in furtherance of its project of destroying all potential centers of resistance to the power of leviathan, neither more nor less.
Yes, I know. I suppose I enjoy the argument sometimes anyway. The real question is how to build those “potential centers of resistance.”
Nah, Sully, I’m someone who thinks that the Leviathan is the greatest book of political philosophy written in the English language and who strongly disagrees with a great many of the leftist interpretations of the Constitution that have been issued in recent decades and also fears that further pernicious nonsense is coming.
Leftward lawlessness is no more pleasing to me than reactionary lawlessness.
sorry, adam, but that quote doesn’t refer at all to Constitutionality but rather to your contention about how “marriage” is going to be harmed and how the use of state power is unwarranted.
I advanced the Constitutional arguments against your position earlier in the thread.
Well, why don’t you cut and paste it into a new comment, because I don’t see anything resembling a “Constitutional argument” coming from you earlier in the thread.
But your response here makes no sense, anyway. If this is not meant as a Constitutional argument (indeed, the closest you come to one), what is it?:
“until you can show that the behavior of other people causes harm to persons, rather than offense to your ideas, the state has no reason to act to deny issuing licenses.”
That’s a statement of principle regarding the validity of laws, not a claim about the effects of same sex marriage. When you say “the use of state power is unwarranted” you are making a claim about Constitutionality, or at least legality–not about the wisdom of one state action or another. Or are you just saying that same sex marriage should be legal? That would be a very strange way to say it, and that was never the question on this thread anyway, which started off with a discussion of a court decision overturning a popular referendum. So, do the people of California have a right to define marriage as a union between a man and a woman? (I do have to admit, though, that my taking the bait of your nonsensical gay/black analogy help cloud that focus a bit)
What would Hobbes say? Can the sovereign define marriage?
What would Hobbes say? Can the sovereign define marriage?
He would say that the sovereign absolutely could, that the benefit of security outweighed the intrusion.
When you say “the use of state power is unwarranted” you are making a claim about Constitutionality, or at least legality–
the claim is of the ethical/legal underpinning of the use of law to enforce your view of marriage.
apologies, adam, the argument was presented at Hot Air.
see four justices who can be counted on to recognize the argument I’ve suggested in the above post, and two more who could well be swayed by it. I don’t think we need to give up on this one.
J.E. Dyer on August 5, 2010 at 4:12 PM
how would your argument work where the state makes a law defining marriage as a union between two people only of the same racial group?
“ Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
and how is your argument against same-sex marriage going to meet the test
of overriding legitimate purpose for the ban???
There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification.
Loving v. Virginia, 388 U.S. 1
unanimous decision, Dyer.
the state can define the qualifications for receiving the benefits attendant to a state-issued license, but exclusions are not going to be allowed to stand without overcoming challenges through demonstration of legitimate state interest sufficient to warrant exclusion.
the (a) part of your argument fails the test.
“the people” are NOT authorized to enact any old definition that suits them at any time. they’ve ceded that authority in agreeing to be governed by the Constitution of the United States.
Maybe I’m missing something. You present (are you quoting here? Until what point?) the argument in Loving v Virginia. That overrules laws against interracial marriage. Then you (I assume) say:
“and how is your argument against same-sex marriage going to meet the test
of overriding legitimate purpose for the ban???”
What test? The passage you quoted (your summary of?) from Loving v Virginia mentioned no “test.” Did Loving v Virginia establish a “test” that the state had to meet in order to ban interracial marriage?
Now, where does this come from?:
“the state can define the qualifications for receiving the benefits attendant to a state-issued license, but exclusions are not going to be allowed to stand without overcoming challenges through demonstration of legitimate state interest sufficient to warrant exclusion.”
Is this also from Loving (a summary of Loving)? If so, is it speaking about “exclusions” in general or specifically race-based exclusions? If not, where is it coming from?
It’s a muddle, and very hard to respond to. If you are using Loving as a basis for the argument, does that case address exclusions in general, or just ones based on race? If the case just addressed the issue of race, then only if marrying the opposite gender=marrying the same race as “exclusions” is the case relevant. How does anyone establish that “=”? Could Loving v Virginia really be saying that no imaginable restrictions on issuing marriage licenses (or even unimaginable ones, since no one imagined gay marriage at the time) are acceptable? Is that really the argument? Race cannot be a factor in issuing mariage licenses, therefore sex can’t be a factor? It’s a complete non sequitur.
‘“the people” are NOT authorized to enact any old definition that suits them at any time. they’ve ceded that authority in agreeing to be governed by the Constitution of the United States.’
Any old definition! That’s great–the only one we’ve had for the past several hundred years (at least) is “any old” one–and, unknown to everyone, was unconstitutional all along.
Just to be clear, though, is that really it? Excluding interracial marriages is the same as excluding same sex marriage? Or, to put it in a way less favorable to your argument and more favorable to reality, excluding one very specific kind of marriage (the state of Virginia didn’t deny it was a “marriage,” did it?–they just considered it the kind they didn’t want to endorse, I assume) is the same as defining “marriage” the way everyone has always defined “marriage,” as a union of man and woman (even in polygamy, “marriage” implies union of man or men and woman or women)? That’s the whole argument? At least that makes it clear why it’s so important for you to drag race into it. What a transparent power play.
And thanks for clarifying the part about Hobbes. You’re pretty deceitful. Hobbes would not support same sex marriage, and yet in defending yourself against the charge of reading the Constitution as a leftist, you presented yourself as a Hobbesian; and, yet, Hobbes has nothing to do with your reading of the Constitution here.
In general, these kinds of discussions help clarify things–the battle, in great part, is about whose reading of the Constitution prevails–the Left has very effectively ensconsed itself in “interpretative” positions: the position that allows you call established institutions “any old.” In a sense, then, you’re a Hobbesian after all–the Constitution means whatever the sovereign says it means–you just want the courts to be sovereign. The only way out will be to reject judical supremacy, and open up Constitutional interpretation to the executive, the legislative, the states–and, indeed, each and every citizen.
A new Reformation!
And thanks for clarifying the part about Hobbes. You’re pretty deceitful. Hobbes would not support same sex marriage, and yet in defending yourself against the charge of reading the Constitution as a leftist, you presented yourself as a Hobbesian; and, yet, Hobbes has nothing to do with your reading of the Constitution here.
I presented myself as someone who thinks that the Leviathan is a masterpiece, not someone who thinks that the positions that Hobbes takes in the work are mine.
That’s not deceit, adam, and I would venture to say that the position that Hobbes lays out is rightly presented as being “the state may grant marriages as it wishes as long as it accords with reason and is not needlessly destructive of the lives of the citizenry”
not
“Hobbes would not support same-sex marriage”.
Hobbes might tell you that Hobbes’ support or non-support would not be binding upon people not Hobbes.
ok, the whole Hobbes reference was a red herring. You’re just a leftist. Very simple
no more a herring than you are a shrubbery, adam.
no more a leftist than you are a reactionary.
no more utility in those labels.
ok. Anyway, we’ve clearly exhausted this.