The Show Me State Shows Its Bigotry

It is a Sad Commentary when a state choses to trample the fundamental rights of its citizens when it should be protecting their rights .12 states Including Michigan have similiar proposals on the table . I am making it my personal goal to vote against any public offical who even thinks about proposing legislation that is Anti civil liberties such as "Anti Gay marriage laws"

Good for you, Vic, and I'm with you. I just talked to one of my best friends who is running a state senate campaign here in Michigan on behalf of a Republican candidate (who won the primary this week and will undoubtedly win the general election too) and he said that in the primary, the only thing that seemed to matter was which candidate could be more against gay marriage. Since he himself is gay, that obviously put him in a very difficult situation. Of course, being a gay Republican campaign consultant is going to put you into such situations quite often and that's the life he's chosen (unlike being gay, I maintain that being Republican is truly a choice LOL). It's just disturbing to me that an hour away from where I live, people are so up in arms over this that even state senate campaigns focus almost exclusively on that issue, something state senators have pretty much nothing to do with.

I'd like to take this moment to apologize on behalf of the people of my state. I don't know what the hell is wrong with them. le sigh...

I don't understand. Why do you consider it a fundamental right for people to have a contract with the state that provides certain benefits and legal obligations on both sides in recognizing a marriage?

I don't believe that a state recognized marriage is a right, nor should it be. I'm not talking just about gay marriage, but all marriage. I don't have problems with states recognizing marriage or with provideing benefits and such for them. I, in fact, support it. Marriage is a good thing for society. Having benefits and such provided by the state to encourage people to marry as well as barriers to make divorce difficult make sense to me. Where you guys lose me, however, is with the thought that states should be forced to provide the same level of benefit/protection to all marriages, even if they provide unequal benefits to the state.

Say what you will about gay marraige, it is not equal in the benefits that it provides to society as hetrosexual marriage. I believe that it still does provide benefits, but they are certainly not the same. Why should any state be forced to offer the same incentives for unequal results?

This should be a state issue, not a fundamental rights issue. The reason, I suspect, that Missouri is trying to pass an amendment to their constitution is to prevent the courts from forcing the state to recognize this marriage, as other state courts have already done.

I don't understand. Why do you consider it a fundamental right for people to have a contract with the state that provides certain benefits and legal obligations on both sides in recognizing a marriage?

I don't believe I said it was a "fundamental right" to have gay marriages, and in fact I think that's the wrong way to look at the issue. I don't think it is incumbent upon gays to show that they have such a right, I think it is incumbent upon government to show that it is justified in discriminating in this way. If there was a compelling state interest in only allowing straight people to marry and not gays, the issue would be quite a different one. But what is that compelling interest? I've never heard one. All I hear is this ridiculous and inflated rhetoric about "traditional family values" and "protecting the sanctity of marriage".

I don't believe that a state recognized marriage is a right, nor should it be. I'm not talking just about gay marriage, but all marriage. I don't have problems with states recognizing marriage or with provideing benefits and such for them. I, in fact, support it. Marriage is a good thing for society. Having benefits and such provided by the state to encourage people to marry as well as barriers to make divorce difficult make sense to me. Where you guys lose me, however, is with the thought that states should be forced to provide the same level of benefit/protection to all marriages, even if they provide unequal benefits to the state.

I agree with you that marriage is a good thing for society, that's why I'm in favor of them. The key question, though, is whether the government, regardless of whether it's state or federal, is justified in denying that benefit to gays. Under the equal protection clause of the 14th amendment, you can't treat people unequally without a compelling reason, and the bigotry of the majority does not constitute a compelling reason. And on the notion of forcing states to do anything, quite the opposite is the case. The only ones who want to force the states to do anything are those who support the federal marriage amendment. To this point, the only legal precedents on gay marriage are from state courts (Vermont and Massachusetts) and are based solely on their respective state constitutions, and the Federal Marriage Amendment would overrule both of those decisions.

Say what you will about gay marraige, it is not equal in the benefits that it provides to society as hetrosexual marriage.

Why? The only reason I can think of is the issue of children, but that would mean that gay marriages are at least as useful to society as childess straight marriages comprised either of the infertile, the willful non-reproducers, or those who marry too old to have children - yet all of those people are allowed to marry and in fact the outcry would be enormous if anyone tried to ban those marriages. So why are gay marriages less beneficial to society than childless straight marriages?

This should be a state issue, not a fundamental rights issue. The reason, I suspect, that Missouri is trying to pass an amendment to their constitution is to prevent the courts from forcing the state to recognize this marriage, as other state courts have already done.

It IS a state issue, now that the federal marriage amendment has failed. And yes, they are passing that amendment at the state level to prevent state courts from ruling for gay marriages based upon the state constitution (if there were a federal court ruling doing so, it would overrule the state constitutional amendment anyway). So the issue in Missouri isn't really states rights, because this action applies only in that state, but is a matter of the citizens of that state taking the issue away from the courts in that state. They do of course have the authority to do that. But that isn't relevant to the ethical or legal question in general, or to the question of what motivates them to do so.

Ed,

True you didn't directly imply that marriage is a fundamental right, that was Vic, I should have pointed that comment to him.

I don't agree that the Equal Protection Clause applies to this situation because people are being treated equally. I understand that some people will not agree with that view, but bear with me. Most of the people using that argument point to the laws against interracial marriage and to the decision that they violated 14th amendment(which I agree with). In the case of interracial marriage it was objectively unequal, but that is not the case with gay marriage. Gay marriage is subjectively, but not objectively unequal(as homosexuals are not allowed to marry the people they desire to marry). Homosexuals have the same objective marraige "rights" that hetrosexuals do. They can marry someone of the opposite sex and cannot marry someone of the same sex. Men(homosexual and hetrosexual) are treated the same by laws against gay marriage. The discinction in the law is based only on gender. All men are treated the same and all women are treated the same, in the sense that any man can marry any woman(with the exceptions of age and incest limitations) and any woman can marry any man. That is quite different than interracial marriage, where the distiction was based on race.

All of that is not to say, that it is subjectively equal, but the Equal Protection Clause has not(to my knowledge) been used to successfully enfoce subjective equality of the law, only objective equality.

Children would be the only proven and compelling benefit to hetrosexual marraige(different people believe in a host of others, such as ones that you point out, but they may or may not be valid and certainly are not yet proven). Most of the benefits and protetions around marriage are based on children, so it makes sense that they would be central to the issue. Strictly speaking, yes a childess marriage is of less value to the state but that would be an objectively inequal application of the law. It would be discrimination against people with a medical disability or based on age. The exception to discrimination would be people who simply choose not to have children, in which case there is no garuntee they will be childless and it is still better for the state they are married in case they do have children.

I do agree that the FMA was a bad idea. I don't want this to be a federal issue, period. Several state courts, however, have tried to make it one by citing marriage as a right that is being denied to homosexuals in violation of the constitution.

Certainly the people in Missouri are taking the issue from the courts, and that is why I agree with them. The decision should be made by the people and not the courts unless it is a violation of the constitution. I would support them equally(though disagree with them) if they were trying to modify their constitution to recognize gay marriage, as I believe it should be a decision that the people of the state make.

Aaron, by your reasoning it is OK to ban interracial marriage after all, it is treating all whites equally (they can only marry amongst themselves), and all blacks equally (they can only marry amongst themselves). What could be more objectively (sepearate but) equal than that?

Tracy,

Those were the arguments used to support interracial marraiage at the time.

The difference is that they disciminate based on race, which is not allowed or acceptable. Gay marriage laws do not objectively disciminate based on sexual-orientation. Homosexuals and Hetrosexuals are treated objectively equal in this case.

Aaron, the subjective/objective distinction you are making is entirely artificial. The only real distinction you're making is not between subjective and objective, it is between discrimination based upon race (which you think is not allowed) and discrimination based upon sexual orientation (which you think should be). But one is no more "objective" than the other. The relevant question, in both cases, is whether such discrimination is justified or not. You have admitted that the exact same argument was used against interracial marriages, but you say that the argument was wrong in that case because it was discrimination based upon race, and is therefore unjustified discrimination. If you cannot tell me why discrimination on the basis of sexual orientation is justified while discrimination based on race is not, then you haven't made the case at all.

Ed,

You are either missing or choosing to ignore the disctinction by labeling it as artifical. Under laws against gay marriage a gay man can do everything that a straight man can. They can marry all of the same people(adult, non-related women) and both are prohibited from marrying the same people(men, closely related women, children, etc.)

That is what I mean by objectively equal. It is subjectively inequal because gey men have no interest in marrying women and insteat want to marry men, while straight men are not bothered by the fact they cannot marry men. Most laws are subjectively inequal (laws against drugs don't affect me as much because I don't want to use drugs), but they are, usually, objectively equal (and when they are not they are typically in violation of the constitution and are usually struck down over time).

I do not think that discrimination based on sexual orientation is justifiable. My belief and my argument is that no such discrimination exists here. The law treats homosexuals and hetrosexuals objectively equally. At the same time, a homosexual marriage offers less to society than most hetrosexual ones (primarilly due to childres) and that gives the state justification for treating the marriages as different.

You are either missing or choosing to ignore the disctinction by labeling it as artifical. Under laws against gay marriage a gay man can do everything that a straight man can. They can marry all of the same people(adult, non-related women) and both are prohibited from marrying the same people(men, closely related women, children, etc.)

Which merely means that it doesn't discriminate on the basis of gender - men and women, as genders, are treated equally.

That is what I mean by objectively equal. It is subjectively inequal because gey men have no interest in marrying women and insteat want to marry men, while straight men are not bothered by the fact they cannot marry men.

But that really has nothing to do with whether the discrimination is objective or subjective. It only has to do with the basis for the discrimination and whether it is justified. That's why I said the only real issue is whether it is justified.

I do not think that discrimination based on sexual orientation is justifiable. My belief and my argument is that no such discrimination exists here. The law treats homosexuals and hetrosexuals objectively equally.

But that simply isn't true. Heterosexuals have the right to marry the person they love; homosexuals do not.

At the same time, a homosexual marriage offers less to society than most hetrosexual ones (primarilly due to childres) and that gives the state justification for treating the marriages as different.

Leaving aside for now the question of whether deciding to have children offers more or less to society (and I think a case can be made that this assumption is in fact false), I think you've nailed down the reason why it is discrimination. You've offered only one reason why gay marriages should not be allowed, because they do not result in children. But if that is in fact a compelling and rational basis for preventing them from getting married, and is the only compelling and rational basis for doing so, then this is the basis for the discrimination: the government decides that heterosexuals who don't or can't have children are still allowed to get married despite this allegedly compelling reason, but homosexuals who can't or don't have children can't get married....because of that allegedly compelling reason. In other words, even if you grant them that this is a compelling reason, they are still offering disparate benefits to two different groups that both should be discriminated against by the standard they claim to be justified in using.

And remember, you've already admitted that this exact same argument was used against interracial marriage 35 years ago, so the key question is whether the disparate treatment is justified. But when they only justification that is offered is one that they only follow themselves intermittently, that removes the justification, doesn't it? If it's a compelling reason for the government to disallow gays to get married, why is it not a compelling for others who cannot have children? The government can't use that as a justification and then arbitrarily suspend their own reasoning to apply it only to those they disfavor. That is the essence of discrimination, is it not? It's like saying that there is a compelling state interest in assuring that all of our schoolkids have a good lunch in school, then only offering lunch to those who don't have red hair. Unless you have a solid, consistent and logical basis for that restriction, it's entirely arbitrary.

Aaron,

I don't think you've proved your assertion that homosexual marriage offers less to society than heterosexual marriage. In fact, this statement

The exception to discrimination would be people who simply choose not to have children, in which case there is no garuntee they will be childless and it is still better for the state they are married in case they do have children.

would seem to support the idea that it would be a good that homosexuals could marry each other. And your statement about the application of the law as being objectively equal overlooks the fact that heterosexuals can marry who they want, while homosexuals cannot.

Remember also, Aaron, the argument that was used against interracial marriage was that it wasn't objectively racial discrimination because blacks and whites were both treated equally - they were both equally free to marry someone of their own race and equally unfree to marry someone of another race. The real difference there was that the law allowed only those who did not marry a person of another race to marry the person of their choosing. This is precisely analogous to gay marriage, where you are arguing that it isn't objectively gender discrimination because both men and women are equally free to marry someone of the opposite sex. The difference is that it only allows straight people to marry the person they choose to spend their life with.

Ed,

Heterosexuals have the right to marry the person they love; homosexuals do not.

Which is a subjective and not an objective distinction.

The argument made for interracial marriage was not exactly the same. I stated that the modification that Tracy outlined was, not my argument. With interracial marriage they argued that it was equal because, although it treated blacks and whites objectively differently those differences were equal, since blacks and whites were equally barred from marrying each other.

This was ruled to be false because it treated blacks differently than whites. It tied in much the same with the whole seperate but equal concept, which was also ruled unconstitutional. There was no valid distinction between an interracial marriage and a traditional marriage that was not based in racial discrimination. It was, therefore, unconstitutional.

As for the children I already addressed that issue. You cannot discriminate against someone with a disability and there is benefit to a marriage for any couple capable of having children(that benifit may not pay out, if they don't have children).

I understand this doesn't make it a subjective equality, but, as I said earlier, laws are subjectively inequal. Yes, it means that homosexuals can be barred from marrying(in the eyes of the state) the person they love. That is a subjective issue.

Drug laws are much the same. Someone who wants to smoke pot is subjectivly discriminated against by the law over someone who doesn't. One is barred from doing something they want to do and the other is not. If subjective equality of the law was a violation of the 14th amendment, we would not have many laws that didn't violate the constitution. You can apply the subjective inequality argument to most laws.

I should probably clarify in light of my last comparison to drug laws, that I am not advocating that gay marriage be banned or made illegal. I simply do not think that a state either is, or should be, forced by the U.S. Constitution to provide the same recognition, benefits, protects, etc. to both homosexual and hetrosexual marriages.

In talk of banning gay marriage, I am speaking only of the state recognition of that marriage. I have attempted to be clear in that, but I don't want that to be misunderstood. Men should not be prohibited from living with each other(heck, I spent a lot of my life with roomates). I simply believe that homosexual and hetrosexual marriages are different. They have different benefits for the state, and the state should therefore be allowed to provide different incentives for them.

Aaron: This was ruled to be false because it treated blacks differently than whites. It tied in much the same with the whole seperate but equal concept, which was also ruled unconstitutional. There was no valid distinction between an interracial marriage and a traditional marriage that was not based in racial discrimination. It was, therefore, unconstitutional.

But how exactly is disallowing gay marriage not discrimination based upon gender (which is also unconstitutional)?

The law cannot treat men and women differently (at least ideally). If men have a right to do something then women must have the same right. A man has the right to marry a woman, how is it not discrimination based on gender to not allow women the same right (and vice versa)?

And exactly where do transgender people and those who are born with indeterminate genitalia fit into this neat little scheme of yours? There are (naturally occurring) hermaphrodites who appear female, think of themselves as female, but who are genetically male (they have a Y chromosome). Should they not be allowed to marry other people with a Y chromosome (and with the equipment that normally goes along with it)?

The sole reason for disallowing gay marriage is that it offends the religious sensibilities of some people, period.

I don't think that is a sufficient (or Constitutional) reason to do so. Adult human beings should be treated equally under the law regardless of any other factors (gender, race, etc.)

Troy,

But how exactly is disallowing gay marriage not discrimination based upon gender (which is also unconstitutional)?

That is a possible argument for using the 14th Amendment, however, the law is allowed to treat men and women differently in many cases and it has not been ruled unconstitutional. The deciding factor appears to be cases where the law treats men and women differently based purely on objective biological differences. (Examples would be issues involving Pregnancy and different physical requirements standards)

To answer your question, the law certainly does discriminate by gender, but, so long as that discrimination has been based only on objective biological differences such discrimination has been allowed.

And exactly where do transgender people and those who are born with indeterminate genitalia fit into this neat little scheme of yours?

I have no scheme, I am simply arguing the legal position that I see involving homosexual marraige. In my opinion, however, where people in those situations fit would likely vary from state to state(as I think this should be a state issue).

The sole reason for disallowing gay marriage is that it offends the religious sensibilities of some people, period.

That is simply not true. That is certainly one reason that many people oppose it, but it is certainly not the only reason.

Why does the state recognize marriage at all? It costs the state money to do so. The legal fees, documentation, tax incentives, court burden(mainly from divorce) are all costs to the state of recognizing marriage. They are costs that people have(at least at one time) decided to pay because there are also benefits to marriage. It creates a better environment for raising children and it tends to reduce social and psycological problems for people, among other things. Children grow up to be taxpayers and productive citizens most of the time, and marriage increases the likelihood of both. Children born outside of marriage, on the other hand, are often very costly to the state, even when they become productive later. Certainly they are often far more costly than marriages are. In that sense it is an investment by the state in it's citizens.

Homosexual marriage is different. It is not an investment to produce more stable children as future producers and tax payers. It does offer other advantages that traditional marraige does, and that does lead the state to have some incentive to encourage it. It does not offer the same advantages to the state. There is no risk of an out-of-wedlock child being born, and there is no possibility of increasing more stable procreation. Homosexual and Hetrosexual marriages are not equal and should not be forcibly be treated as such.

Some states will and should allow homosexual marriage. Other states will not. Both should be free to do so.

Adult human beings should be treated equally under the law regardless of any other factors (gender, race, etc.)

Should men get the same maternity leave that women get when their wives/girlfriends become pregnant? (and really consider that law...I don't think it would be a good idea to force a company to keep an non-working man on the payroll because he is able to impregnante a women every so many weeks/months)

Should the physical requirements to enter the military be lowered for men to the same level they are for women?

Should men be allowed to use women's restrooms, and vice versa?

Men and women are different and the law should allow them to be treated as such, as long as the discrimination is based purely on objective biological differences. So far, the courts seem to have supported that limited gender discrimination.

The argument made for interracial marriage was not exactly the same. I stated that the modification that Tracy outlined was, not my argument. With interracial marriage they argued that it was equal because, although it treated blacks and whites objectively differently those differences were equal, since blacks and whites were equally barred from marrying each other.

This was ruled to be false because it treated blacks differently than whites. It tied in much the same with the whole seperate but equal concept, which was also ruled unconstitutional.

But that just doesn't make sense. According to your own reasoning, it didn't treat blacks differently from whites because both blacks and whites were equally free to marry within their race but not to marry outside of it. This is absolutely identical to your argument that banning gay marriages treats gays and straights the same because both gays and straights are free to marry someone of the opposite sex and unfree to marry someone of the same sex. In your own words:

Homosexuals have the same objective marraige "rights" that hetrosexuals do. They can marry someone of the opposite sex and cannot marry someone of the same sex. Men(homosexual and hetrosexual) are treated the same by laws against gay marriage. The discinction in the law is based only on gender. All men are treated the same and all women are treated the same, in the sense that any man can marry any woman(with the exceptions of age and incest limitations) and any woman can marry any man.

That is precisely the argument that you claim was made against interracial marriages, and it is false for precisely the same reason, because although it treats both races or both genders equally, it only allows SOME of each group the right to marry who they want to marry. Now there are cases where such a restriction might be justified. No one thinks you should be allowed to marry ANYONE you want to marry. If you want to marry a 10 year old, the answer is no, because there is a legitimate and compelling state interest in protecting children against such actions before they are capable of giving informed consent. So the issue is not that all restrictions on marrying who you want to marry would be unallowed, the issue is whether any particular restriction on marrying who you want to marry should be unallowed or not. And for that, you've only offered one justification for that restriction, and that is that they don't have children and children are a benefit to society. But if that justification is arbitrarily applied, as it is here (applied only to gay couples and not to straight couples who choose not to have children or are incapable of doing so), it is no longer a compelling justification. It would be called special pleading and would, and should, be rejected.

There was no valid distinction between an interracial marriage and a traditional marriage that was not based in racial discrimination. It was, therefore, unconstitutional.

And there is no valid distinction between a gay marriage and a straight marriage that is not based in discrimination against homosexuals. The only distinction you've attempted to make between them is that gay marriages don't have children involved. But many straight marriages don't have children involved either, either by choice or by necessity. Which means that the justification that you offer is applied selectively, only against gays and not against straights. If that justification is valid and compelling - if the ability or desire to have children is truly what makes straight marriages valid and gay marriages invalid - then why is it not applied consistently? Because that's not the real reason why anyone wants to ban gay marriages. It's just an excuse, inconsistently applied.

What you're missing in this artificial distinction you're making between "objective" and "subjective" differences is that what really matters is whether the basis for discrimination is compelling or not. That's really the only relevant question. And if children was really a compelling reason to ban gay marriages, then it would also be a compelling reason to ban a sizable portion of straight marriages, but no one would consider that reason to be compelling if it was used to justify banning childless straight marriages. So why is it considered compelling only when applied to gay marriages? Because it is a false justification, offered and applied hypocritically. And when courts evaluate the question of whether a legislative justification is truly compelling, that is precisely the sort of question they should be asking - if it's such a compelling justification, why do those who offer it not apply it in every case where it applies equally well? Again, it's like justifying a law providing school lunches by saying that it helps the educational process to have well nourished kids, then applying that reasoning only to those who don't have red hair - it's an entirely arbitrary distinction that proves that the justification being offered isn't valid.

Ed,

That is precisely the argument that you claim was made against interracial marriages

No, it isn't. In interracial marriage a white man could do something that a black man could not(marry a white woman). The argument was that it was equal because the white man could also not marry a black woman. So the argument was that there was racial discrimination, but that it was equally applied. It was ruled unconstitutional because there was no valid objective reason for the racial discrimination. Interracial marraige was held to be the equal of a traditional marriage and the law treated it differently, therefore it was inequal and was struck down.

With homosexual marriage it is different. There is no person that a hetrosexual man can marry that a homosexual man cannot and vice versa(in objective and not subjective terms). The fact that a homosexual man doesn't want to marry the same type of person that a hetrosexual man does, does not make the law objectively inequal. Just as the law is not objectively inequal in barring all people from polygamy even though only some people have a desire to marry multiple partners.

And if children was really a compelling reason to ban gay marriages, then it would also be a compelling reason to ban a sizable portion of straight marriages.

I have addressed this several times already. In the case where a couple chooses not to have children, there is no garuntee that they will remain childless. In such a case you could think of state marriage as an insurance policy against their having children. Sometimes it pays, sometimes it doesn't but it is still a worthwile investment. In the case of a couple being infertile, there is the argument of disability which could be complelling to protect them. I have previously mentioned other reasons that the state would allow such marriages, but they are not very relavent. The primary reason they are allowed is because people want them to be. If they were banned, the only constitutional protection that I can see would be an argument about discrimination based on disability, which is certainly a possible valid argument.

In that case there is discrimination becuase the law would treat fertile and in-fertile people differently. So that discrimination would have to be justified, which is very rarely allowed.

Again, it's like justifying a law providing school lunches by saying that it helps the educational process to have well nourished kids, then applying that reasoning only to those who don't have red hair.

No, this isn't at all the same. It is like justifying a law that provides milk as part of a school lunch for all kids, even the ones that don't like and won't drink milk.

Ultimately our positions differ around one central point on this issue.

You believe that by prevent homosexuals from marrying members of their own gender that they are discriminated against. I disagree. I argue that there is no discrimination here because the law treats a homosexual person exactly the same way it treats a hetrosexual person. It doesn't discriminate, because the people that they are allowed to marry do not change based on their sexual orientation. If you didn't know the sexual orientation of a person you can still correctly state who they can and cannot marry. So how is that discrimination? If the law provides the same result even when you do not know the attribute in question, how can you claim that it discriminates based on that attribute?

Anti-Interracial marriage laws were not like that. You had to know the race of the person involved in order to determine who they were allowed to marry. It certainly discriminated, the only argument was that it did so equally.

The law does not discriminate here. That does not mean it is fair. It is not fair. I agree with you on that. Many laws are not fair, however. That doesn't make them unconstitutional.

Aaron said: "Should men get the same maternity leave that women get when their wives/girlfriends become pregnant? (and really consider that law...I don't think it would be a good idea to force a company to keep an non-working man on the payroll because he is able to impregnante a women every so many weeks/months)"

That's the way it works in Canada. And it works quite well, thank you :-)

Don

Disclaimer: I've been following this blog for a while, but I'm not sure whether strangers like myself typically comment. If I'm intruding, I truly apologize and won't do it again (just let me know if that's the case). Feel free to delete this if necessary.

Second disclaimer: This took an eternity to write, and so only refers to an earlier comment. Sorry for errors in spelling, but, now that I think about it, also in logic if that's the case..

My own comments in plain type.

But how exactly is disallowing gay marriage not discrimination based upon gender (which is also unconstitutional)?

-- ...the law is allowed to treat men and women differently in many cases and it has not been ruled unconstitutional. The deciding factor appears to be cases where the law treats men and women differently based purely on objective biological differences. (Examples would be issues involving Pregnancy and different physical requirements standards)

Of course there there situations where the law treats people differently based on personal characteristics (e.g. different punishments for younger lawbreakers). Technically, "discrimination" is a neutral term. However, our country's founding premise of "all men are created equal" requires that there be some compelling reason for the discrimination. The characteristic being used to discriminate must be necessary to the law's just application, and germane to its intent. Otherwise, discrimination is unconstitutional.

Also, I'm not sure what you were thinking of when you refer to "issues involving pregnancy", etc. Perhaps it would be helpful if you gave specific examples and, of course, show why they are parallels to the marriage question.

To answer your question, the law certainly does discriminate by gender, but, so long as that discrimination has been based only on objective biological differences such discrimination has been allowed.

I'm not sure what you mean by "objective" biological differences. What's a "subjective" biological difference - something one person sees as a difference, but another person sees as ... not a difference? I'm not trying to be catty, but you have often, in many of your comments, used the word "objective" in a way that I don't understand. Perhaps I misunderstand your arguments because of that.

And the test isn't as simple as "discrimination between men and women is constitutional as long as it's based on biological differences." By that rule, any sex-discriminatory laws would be constitutional, since, in current U.S. law, it IS your biology - not personal identification with a gender label, not personality, not appearance, not whether you prefer "he" or "she" - that defines you, legally, as male or female. A person who wears men's clothes, prefers to be referred to as "he", and is perceived as male by the average stranger will still be legally female if said person has XX chromosomes and female genitalia. (Hence the legal confusion whenever intersex and post-operative transsexual people come up.)

Now, rereading what you said, perhaps what you meant was that discrimination between men and women is justified if the biological characteristics used to legally define "men" and "women" are relevant, and the need for such differentiation is compelling. If that's what you meant, I agree completely, adding that this relevancy is absolutely necessary to justify legal discrimination.

And exactly where do transgender people and those who are born with indeterminate genitalia fit into this neat little scheme of yours?

Aaron's reply read but not included here

Aaron, one of the reasons we same-sex marriage supporters will often bring this question up is that often people arguing against SSM will propose reasons which capitalize on the words "male" and "female" while having little to do with biological sex (which, as you remember, is the legal definition of male and female).

Although they are used interchangeably in everyday conversation, in cases like this it is helpful to define "sex" and "gender" separately. Sex refers to biological characteristics (i.e., genes and genitalia) which,in MOST cases, will "match up" (XX + ovaries, XY + testes) to classify someone as biologically "male/female." Gender refers to other tangible and nontangible characteristics (such as personality, behavior, mannerisms and physical appearance) which are used to, in everyday life, classify someone as "male" or "female" without knowledge of their genes or their private anatomy .

Oftentimes, same-sex marriage opponents will argue on the presumption that sex equals gender equals distinct type of human. They assume that the genes-and-genitalia legal definition of "sex" will somehow ensure that the person meeting the legal definition will possess certain personality/behavior traits that are definitely gendered, i.e., "masculine" or "feminine." And since both "masculine" and "feminine" traits are (by their thinking, not mine or the Constitution's) needed for a legal marriage, legal marriage must therefore require certain genes/anatomy.

Bringing up transgendered people proves that a male biology does not guarantee gender traits perceived as "male", same for female biology. (The other assumption that masculine and feminine traits, whether emotional, behavioral or otherwise, are radically different - is another one that hurts my brain, but I won't get into that for now.) And bringing up intersex people challenges the assumption that certain genitalia are necessary to have a successful marriage. Whatever your idea is of an ideal marital relationship (which may not jibe with mine), if a (biological) man and woman are needed for it to occur, then are people who were born sexually ambiguous thus incapable of that ideal relationship? It's rather insulting to think that certain types of(i.e. intersex) genitalia limit one's capacities or options in relating to other people, yet that's what the man-woman superiority argument implies.

Why does the state recognize marriage at all? ...there are also benefits to marriage.
Not an easy question, and one whose answer I'm not totally sure about. Nevertheless, I'll say, and only say, what I am fairly sure of.

Important: Note that when I say marriage, I mean only legal marriage unless otherwise stated.)

By my understanding, state (civil) marriage is a legal relationship between two people, which has certain legal incidents (legal rights, tax benefits, we've all heard the list) which are nevertheless not part of the legal definition. Basically, the only consistent legal (American) definition of marriage is that it's, well, a legal relationship between two people that's called "marriage." Or "matrimony." Whatever.

What makes marriage so controversial is its incidents: 1) the cultural incidents and 2)the legal incidents.
Brief descriptions be patient with my numbering and lettering here! :

1)Cultural incidents:

a) It's expected - to one degree or another, and expectations vary by locale/the local culture - that people entering into marriage have a certain kind of relationship. Usually, this relationsip includes at least some of the following: being "in love", having sex, living together, liking each other, having children, being committed for a lifetime, being committed for an indefinite amount of time, being the most important people in each other's life, pooling finances, not having sex with other people, being more committed than prior to entering the marriage.

b) Americans will often treat a married couple in conversation, in social life - as if they are more stable than an unmarried couple. They will also assume that the couple fulfills whatever the local expectations are (examples listed in point a).

2) Legal incidents include visitation rights, inheritance rights, tax breaks, divorce mediations, right to payments in the case of a divorce, property ownership, etc. we've all heard the list. Note that many of these rights visitation, divorce proceedings, etc. are predicated on the assumption that the married couple has certain elements to their relationship (cultural expectations reflected in legal constructs) even though these elements are not universally required if at all for legal marriage.

Personally, I believe that the government should stay out the purely social/cultural aspects of marriage, as 1) government regulation of culture and society, when it's not directly infringing on the Bill of Rights, nevertheless goes against the principles of individual liberty in the absence of compelling reason to legislate otherwise one cannot regulate culture without regulating individuals; and 2) it's usually pretty stupid and can't really work. For example, some purely social/cultural aspects of marriage (not the legal definition, but the cultural one) which I listed are things like being in love, having sex, feeling committed, abstaining from sex outside marriage, etc. Laws that expect a sexual component to marriage (I'm back to the legal definition now) intrude on the personal lives of the parties involved just as much as laws that expect no sex outside marriage. As for being in love, which is probably the chief definer of cultural marriage the government should not take, well, love into consideration. Look, I'm going to blab a purely visceral reaction, but the idea of the government categorizing and labeling people's feelings in order to regulate them scares me.

The only things I listed above that I believe the law should take an interest in are the presence of children in a household (children, who have so few rights, definitely should be legally protected financially and otherwise) and whether finances are shared (for tax purposes, welfare, etc.).

I won't comment on the legal incidents, since not only am I utterly uneducated in law, but I'm a minor who's never had to handle a check, much less file tax returns, in her life. I'll simply repeat that any law which inflexibly relies on the cultural definition of marriage instead of the legal one would, I think, be inappropriate.

[Marriage] creates a better environment for raising children and it tends to reduce social and psycological problems for people, among other things. Children grow up to be taxpayers and productive citizens most of the time, and marriage increases the likelihood of both.

First: legal marriage, as far as I know, doesn't do that. The cultural aspects of marriage do that: the shared household, the parents working in tandem, the pooled finances they're what create a better environment, in addition to a myriad of other factors.

It's probably true that most couples who view legal marriage as a sign of cultural marriage (I've been using that made-up term quite a bit, haven't I? If it's confusing and someone can't follow, sorry and let me know) will be encouraged by their legal union to do better in their social union.

Legally, however, it's quite a stretch to say that, just because our culture and our government have together blurred the line between a legal relationship and a social one, the legal relationship should thus be regulated as a proxy for regulating the social one. Legally regulating social relationships isn't good, and I fail to see how indirectly regulating a social relationship by using a legal one as its symbol is any better.

Second: If marriage was really all about children if it was a legal relationship created between a child's guardians which would legally bind them to each other and the child in a way that ensures the child has sufficient money and guardianship and that each guardian has some legal responsibility for the child sure, I'm all for it. In that case, though, marriage should be defined as just that, without all the other legal incidents I've mentioned repeatedly that refer cultural implications having nothing to do with children. In addition, marriage would also have to be dependent on the presence of a child, and the fact that the people involved are raising the child. Note that this definition would not partial to same-sex couples, opposite-sex couples, intersex couples, adoptive parents, biological parents, platonic friends raising a child together, multiple-adult households which calls into question "marriage is all about children" as an argument against SSM.

Children born outside of marriage, on the other hand, are often very costly to the state, even when they become productive later. Certainly they are often far more costly than marriages are. In that sense it is an investment by the state in it's citizens.

Huh? Again, you're confusing "good child-raising environment" with "legal relationship." Remember: legal relationship does not guarantee nor does it preclude commitment to parenthood, financial security, etc. Also remember what I just said about why marriage as currently defined is not all about children. Sigh.

Also, since you're arguing against SSM, I assume that when you say "children born outside of marriage" are worse off, you're stressing the BORN: "children whose biological parents are not the same as their guardians." I have no idea why you think adoptive parents would be worse at child-raising it would seem that people who have the money for expensive adoption searches and fees are more likely to be financially secure, and people who make an effort to acquire a child would be more likely to be committed to parenthood.

Homosexual marriage is different.

Well, sure it's different in the sense that the genes or genitals are the same instead of different. The issue isn't that, or even whether same-sex unions are worse than opposite-sex ones. It's whether it's constitutional to discriminate based on sex for the purposes of allowing marriages (legal sense, remember).

It is not an investment to produce more stable children as future producers and tax payers.

No, but as said above, neither is opposite-sex marriage.

It does not offer the same advantages to the state. There is no risk of an out-of-wedlock child being born, and there is no possibility of increasing more stable procreation. Homosexual and Hetrosexual marriages are not equal and should not be forcibly be treated as such.

Oh boy. I'm sorry I hate it when other people do this, yet I'll be a hypocrite this time: I'll try to address an argument without actually understanding it, because I've read what you said three times and I still don't get it.

Assuming you mean "more stable environment for a child" when you say "stable procreation," you seem to imply that legal marriage's sole purpose is to get people to commit to their children who would otherwise go around knocking or getting knocked up with nary a thought as to the child or the other parent. Sorry, my brain still hurts from trying to comprehend this. A legal relationship between two people (instead of the cultural expectations for marriage) somehow secures the childhood of a third? Children of non-biological parents don't deserve legal protection? Marriage is all about children, yet what marriages are allowed are based on the characteristics of the parents?

Aagh. I'm sorry, Aaron. Perhaps you're like I am right now forty-eight hours away from the last time you got more than two consecutive hours of sleep. I just cannot for the life of me understand where you're coming from on this one.

And "forcibly treated as equal"? Well, legally, people should be treated equally unless (let's say it again, kids) there's a compelling, germane reason to do otherwise. No such reason has so far been provided in regard to legal marriage.
Are you implying that a legal relationship forces American society overall to respect the social one between the legal contractees? Listen, there are numerous legal relationships I loudly proclaim my utter moral contempt of - e.g. people who marry for sex or money, the perfectly legal financial relationship between George W. Bush and religious right organizations and I haven't been jailed yet.

Some states will and should allow homosexual marriage. Other states will not. Both should be free to do so.

The hell? You just spent a dear chunk of your time arguing against legal SSM and its "cost" to the state, and now you want states to be free to allow them? Is SSM okay with you as long as it's in, I don't know, California? You know, where they're all going to hell anyway?

Right now, it's not a question of whether states "should be allowed to" regulate marriage by banning SSM. It's whether they are allowed to. And since banning SSM while allowing OSM is unconstitutional, and scholars are in general agreement that the 14th amendment settled the question of whether the constitution applies to state government, no, they're not allowed to. Obviously, there are plenty of laws in the U.S. that are blatantly unconstitutional , which survive due to lack of enforcement, obscurity, inertia or cultural impetus. At risk of sounding like an in-your-face moralist (well, I am one), that still doesn't make it right.

Adult human beings should be treated equally under the law regardless of any other factors (gender, race, etc.)

---Should men get the same maternity leave that women get when their wives/girlfriends become pregnant? (and really consider that law...I don't think it would be a good idea to force a company to keep an non-working man on the payroll because he is able to impregnante a women every so many weeks/months)

Aaron, thanks for giving this example, because it's actually a perfect illustration of why arguments that sex-discriminatory marriage laws are constitutional are proved ridiculous when extended to other areas.

Anti-SSMers argue that people should be allowed access to a certain legal arrangement marriage - when they do what's appropriate to their gender: A woman should only be allowed to right to marry only when she does what's appropriate to a woman, i.e. seek to marry a man. The man is allowed access to the legal arrangement not for doing the same thing, but for following the different, "corresponding" route for a man seeking to marry a woman. Following this argument, a man who has impregnated a woman WOULD be allowed access to the same legal arrangements as the woman who became pregnant it's the corresponding male action, isn't it?

SSM proponents argue based on the Constitution's principles that people should be treated differently by the law only with compelling reason and according to relevant characteristics. In this case, the relevant characteristic would be pregnancy, and the person's sex is an irrelevant factor. If a man somehow got pregnant, he would be allowed access to the same legal arrangements. Equivalently, a woman whose spouse became pregnant would be treated the same as a man in the same situation.

Should the physical requirements to enter the military be lowered for men to the same level they are for women?

They're not the same? That doesn't seem right, unless it's some kind of affirmative action. And while I support affirmative action in the theoretical, I'm pretty picky about its real applications. So ideally, the physical requirements should be whatever allows someone to function well in the military, regardless of their gender.

Should men be allowed to use women's restrooms, and vice versa?

You don't see much lobbying about this because it's an innocuous cultural custom that really rarely hurts anyone and whether anyone is hurt makes a big difference when we morally oriented activists select what laws to challenge. But note that, in some cases, yes some transgendered women who are legally men do indeed use women's restrooms, because they are female in appearance and would be out of place and even at risk if they went into the men's.

Coffeedrinker,

While we disagree on many things, let me clear up some of my positions that I don't think you correctly understand.

I have nothing against homosexual marriage being allowed. My argument is not at all that homosexual marriage should be banned. My argument is only that banning homosexual marriage is not a violation of the constitution. In explaining the costs of marriage and comparing homosexual and hetrosexual marriages in the costs and benefits, I am only pointing out that the tow are not the same. This does not mean that homosexual marriage is not desireable or should not be allowed, it means only that it is different and therefore justifiable that the state treat it differently.

With regard to children, several things....

Most of the legal protections around marriage are designed to protect children..most of the rest are designed to protect women. The latter are starting to become a bit antiquated as it is less common in society that women need more legal protection than men, but that was not the case when the laws were made.

I do not believe that biological parents are better than adoptive parents, but children who are adopted often have more problems than children who are raised. Legal protections can be easily built into the adoption process rather than a marriage process for such cases.

The built in protections of marrige protect for unexpected children. Since it is impossible for homosexual couplings to result in unwanted pregnancy, there is no need to have such protections.

As for more clearly defining objective biological differences in men and women. An objective difference is the fact that women can become pregnant. A subjective biological difference is to say that men are stronger than women. One is proveable in all cases, the other is based on the subject and is not always proveable or even true.

The discussion on justified discrimination is interesing, but not completely relevant to me in this case, however, because there is no discrimination in this case (under a legal objective definition). For more on that subject see my previous comment, which I suspect you didn't have a chance to read before your comment.

To clarify that, I do understand the point that you are making in that the law does discrimiate subjectively in only allowing hetrosexuals to do what they want to do, but as I said earlier, all laws are subjectively inequal.

You could just as easily argue that speeding laws are discriminatory, because they allow slow drivers to travel at the speed they desire, but do not allow fast drivers to do so. Certainly that is a far more trivial example and it is not my intent to trivialize marriage, either homo or hetro, but the point I'm making is that subjective inequality is always part of the law.

What matters is in the law is objectively inequal, which is not the case here.

Now if you want to argue that homosexuals should be allowed to marry each other, I would not oppose you. If you argue that it is better for society that they marry I would also not argue against you(I'm not conviced either way at this point on that). I would even allow that it is bad law to prohibit gay marriage. I would not have a problem with a state allowing gay marriage(and no, not just a state that is far away or whatever) Honestly, I don't think I would oppose the state I live in allowing gay marriage. I do not, however, think that the constitution demands that the states recognize it, and I will oppose that view as I have here.

I don't know if this will clarify or confuse you. I am not anti-gay, I'm not even really against gay marriage. I do not approve of the homosexual lifestyle personally, but I think that my personal feelings on it should have no bearing on laws or on sensible practices in society. It is better for homosexuals to be married than for them not to be, and so I think that such marriages should be allowed. I do not think that they are the equal of hetrosexual marriages in the benefit they offer and so I do not think that the state should have to offer all of the same incentives and protections. I do, however, have no problem with the people of a state deciding to do so.

Ultimately the problem that I have with the issue is one of state rights. I believe that people are trying to bend interpretation of the constitution to suit their agenda and I disagree with that being done.

Disclaimer: I've been following this blog for a while, but I'm not sure whether strangers like myself typically comment. If I'm intruding, I truly apologize and won't do it again (just let me know if that's the case). Feel free to delete this if necessary.

First, strangers like yourself are absolutely welcome to comment. Most of the people who comment on this blog were strangers to me before they started to comment, and many still are strangers to me. Second, this is a really well reasoned reply, so thank you for posting it. I'm finding a hard way to say this without sounding condescending, and I hope you don't take it as such, but you mention that you're still a minor. I'm enormously impressed by your ability to reason and express yourself at this high a level at that age. I considered myself a pretty advanced and precocious teenager, but I doubt I could have written anything quite that detailed and well thought out at your age.

There are a couple places where I think you misunderstand Aaron's position, but I think you're quite right about the anachronistic use of objective and subjective in his argument (and I plan to add my own reply to Aaron's last comment, but likely not until Sunday). Aaron is a thoughtful person who has commented here many times, though, so I wouldn't assume too much about his position. He's not exactly a raving fundamentalist, his views are much more nuanced and well thought out than that.

At any rate, thank you for the excellent comment and feel free to leave more in the future.

Aaron - Thanks for the reply. Rereading my post, I did do a good impression of Oscar the Grouch in some places, and please understand that it was nothing personal - I'm sleep-deprived, I'm used to reading utterly hateful homophobic bilge elsewhere, and I never meant to imply that you, personally, aren't thoughtful or that your intentions aren't good. (Sleep also has an effect on reading comprehension, so yes, I did have a hard time grasping what you were trying to say . Again, nothing personal.)

Regarding the difference between bad policy and unconstitutionality - yes, I recognize the difference, and always make a conscious effort to differentiate in my arguments - primarily, I was arguing that laws that take gender into account without compelling reason are unconstitutional, and then arguing that no such compelling reason exists for the status quo. Based on my (very)limited knowledge of the Constitution, I do perceive flaws in your arguments, but I hope you will point it out whenever my "knowledge" is wrong.

Ed- Thank you! I'm usually less than coherent, but I'm glad you could actually detect "reason" in that post . And yes, I am a minor - which I stress mostly to drive in the point that I am very very uninformed. My full educational credentials consist of a tenth grade education, exactly one semester of American Government, and a pocket copy of the Constitution which I've read, oh, once. Really, all my legal knowledge comes from the occasional passing reference in some news story. It's not the most reliable method, and I do try to check said info, but you see what I mean - it's a bit intimidating on forums (well, blog comments) like this where it seems like everyone else has a law degree!

Anyway, conciseness isn't my strong point, as you may have noticed. I'd just like to add that it's great to stumble across people who actually read each other's arguments and debate in the true, civilized sense of the term.

Ed: Second, this is a really well reasoned reply, so thank you for posting it. I'm finding a hard way to say this without sounding condescending, and I hope you don't take it as such, but you mention that you're still a minor. I'm enormously impressed by your ability to reason and express yourself at this high a level at that age. I considered myself a pretty advanced and precocious teenager, but I doubt I could have written anything quite that detailed and well thought out at your age.

Hello Coffeedrinker,

I just want to echo Ed's comments here. I too was taken aback when you mentioned that you were still a minor. It never would have occurred to me from reading your comments that this was the case.

Bravo, well done.

Arron wrote:I do not think that they are the equal of hetrosexual marriages in the benefit they offer and so I do not think that the state should have to offer all of the same incentives and protections.

Legally SSM couples (same sex marriage) would have to pay state / property taxes same as childless couples or singles (no kids), for that matter. They have to pay for the school lunches that the red haired kids dont get to eat. ( Im a redhead) There are many for the kids taxes that are mandatory that do not benefit those without kids.

In the case where a couple chooses not to have children, there is no garuntee that they will remain childless.

In this discussion, I think I can safely say (anybody can correct me) that the majority of childless couples (by choice) have by their late thirties early forties decided / made sure that they are not going to have an oops child.

Excluding the children argument, please give some examples of how SSM are not equal in the benefits they offer. To the state? (legal). To society? (cultural).

Should the physical requirements to enter the military be lowered for men to the same level they are for women?

Not lowered. The requirements should be stated and anyone who can do the job should be allowed in.

Should men be allowed to use women's restrooms, and vice versa?

Yes. Our culture hasnt really grasped the Unisex idea yet. Privacy stalls are available, its just that our culture is not comfortable with nature.

Like Coffeedrinker stated and stated quite well I might add, is that there are two aspects to marriage. Legal and cultural. Question: An SSM couple lives in your neighborhood, you dont know them and you dont know that they are an SSM couple, what impact (legally) do they have on yourself and /or your family?

Why does the state recognize marriage at all? It costs the state money to do so. The legal fees, documentation, tax incentives, court burden(mainly from divorce) are all costs to the state of recognizing marriage. They are costs that people have(at least at one time) decided to pay because there are also benefits to marriage. It creates a better environment for raising children and it tends to reduce social and psycological problems for people, among other things. Children grow up to be taxpayers and productive citizens most of the time, and marriage increases the likelihood of both.

Yes, statistics are high for the potential for problem children of unmarried parents. What about this? Hetro couple divorced after five years, mother with three kids under five years old and on welfare.these kids were born in marriage. The state is now picking up the tab for these kids raised outside of marriage.

Children born outside of marriage, on the other hand, are often very costly to the state, even when they become productive later. Certainly they are often far more costly than marriages are. In that sense it is an investment by the state in it's citizens.

Please explain, how did this marriage reduce social and psychological problems for people. There are so many variables to the difficulties within the nuclear hetro family in making sure the kids are brought up to be a part of society. With the SSM couples making up less than 10% (Im guessing here) of a population, how can you imply that children of these families will be more costly to the state than the children of hetro couples?

The argument made for interracial marriage was not exactly the same. I stated that the modification that Tracy outlined was, not my argument. With interracial marriage they argued that it was equal because, although it treated blacks and whites objectively differently those differences were equal, since blacks and whites were equally barred from marrying each other.

This was ruled to be false because it treated blacks differently than whites. It tied in much the same with the whole seperate but equal concept, which was also ruled unconstitutional.

I'm still not sure what you mean by "objectively differently." I think you might mean "based only on the characteristic of being black or white", but if that's the case I'm still not sure what objectivity has to do with it you can't impartially (isn't that what "objectively" means?) decide whether someone is black or white. There's no "black gene" or "white gene" that defines people of either group; it's a totally subjective evaluation of whether a person's/a person's ancestors' skin color best puts them with "blacks" or "whites." It's not black and white, if you'll pardon me for saying that. : )

Well, I'd just like to point out that what you say about interracial marriage bans is what I've been saying all along about SSM bans. You could argue (falsely) that, simply because it doesn't treat one group better than another, it's constitutional. The issues are alike in that aspect: In both cases, people classified as A can do 1 but not 2; people classified as B can do 2 but not 1. 1 is not better than 2 or vice versa; marriage to a white person isn't inherently superior to marriage to a black one; marriage to a man isn't inherently superior to marriage to a woman.

Yes, as you point out, constitutionality actually refers to the Constitution, as opposed to mere bad policy. I was under the impression that, although the words "separate but equal" never appeared in the Constitution, Supreme Court rulings (plural, I think but am not sure) have rejected even this type of discrimination making distinctions without treating any one group "worse" than another as unconstitutional in the absence of clear and compelling reason that the discrimination is necessary and relevant.

SSM bans proscribe different actions depending on the gender of the person, and thus is undeniably reliant on gender discrimination: women are treated differently than men. Whether you believe said discrimination is unconstitutional or desirable are separate issues, but according to the definition of "discrimination" making distinctions - the word does apply here.

There was no valid distinction between an interracial marriage and a traditional marriage that was not based in racial discrimination. It was, therefore, unconstitutional.

Although we seem to agree that interracial marriage bans were ruled unconstitutional, I'm not sure "no valid distinction besides racial discrimination" was the rationale. If by "valid" you mean "true", you could come up with any number of distinctions between an interracial couple and a "traditional" one an interracial marriage is guaranteed to include at least one person without the full set of X-number of genetic traits related to white skin color, a traditional one won't; an interracial marriage is incapable of conceiving a "white" child, a traditional one can. The key is that none of these distinctions are a compelling reason for discrimination.

I see that you mention child-conceiving ability as a distinction later on, so I'll hopefully be able to answer you then.

As for the children I already addressed that issue. You cannot discriminate against someone with a disability and there is benefit to a marriage for any couple capable of having children(that benifit may not pay out, if they don't have children).

(By disability I assume you mean infertility, whether natural or as a result of a person's choice to be sterilized.)

Of course you can constitutionally and legally discriminate against someone with a physical disability. Think about it blindness is a definite disability, yet no court would think of ruling against a company which, solely because of the blindness, refused to hire a blind person as a security guard. Relevancy is key.

In the security guard case, blindness is relevant because the job requires the ability to see. According to you, the purpose(s) of marriage center on conceiving children. Doesn't that make the ability to conceive children the relevant characteristic? Since relevancy is key, why would you, instead of discriminating between couples with the relevant characteristic and couples without, discriminate between a couple who can't conceive children because one of them has nonfunctioning testes and a couple who can't conceive children because one of them doesn't have testes, period?

Drug laws are much the same. Someone who wants to smoke pot is subjectivly discriminated against by the law over someone who doesn't. One is barred from doing something they want to do and the other is not. If subjective equality of the law was a violation of the 14th amendment, we would not have many laws that didn't violate the constitution. You can apply the subjective inequality argument to most laws.

I think I understand most of what you're saying that just because some people dislike following a law and others don't mind, that doesn't make it unconstitutional and of course absolutely agree. I still don't understand what objectivity has to do with it, though.

[H]omosexual and hetrosexual marriages have different benefits for the state, and the state should therefore be allowed to provide different incentives for them.

I'm not sure what "benefits" you're referring to the country isn't exactly suffering a drastic population drop, more conceptions aren't necessarily good (not to make light of it, but just ask Africa), conception doesn't coincide at all with legal marriage, which is the kind of marriage we're discussing, and we're not discussing (for the most part) whether the state should be allowed to discriminate, but whether it is (by the Constitution) allowed to discriminate.

Coffeedrinker,
While we disagree on many things, let me clear up some of my positions that I don't think you correctly understand.

Thanks! That's always helpful : ) I try not to assume anything a person doesn't state explicitly, but we all err sometimes.

I have nothing against homosexual marriage being allowed. My argument is not at all that homosexual marriage should be banned. My argument is only that banning homosexual marriage is not a violation of the constitution.

Read, understood, and I think I've made an effort
to keep constitutionality and good policy separate.

In explaining the costs of marriage and comparing homosexual and hetrosexual marriages in the costs and benefits, I am only pointing out that the tow are not the same. This does not mean that homosexual marriage is not desireable or should not be allowed, it means only that it is different and therefore justifiable that the state treat it differently.

Constitutionally justifiable? I realize you probably didn't mean to word it this way, but the way you have it written, "not the same" or "one is better than the other" would justify discrimination (and remember that we're talking about discrimination being constitutionally justifiable, not morally or ethically justifiable). I have the impression (again, I'm very ignorant here and you're welcome to show me if I err) that even "better" much less "different" is not sufficient to meet the legal test of a clear and compelling reason.

I'm not sure what you mean by costs and benefits. So far, you've only been focusing on the capacity to conceive children.

With regard to children, several things....
Most of the legal protections around marriage are designed to protect children..most of the rest are designed to protect women. The latter are starting to become a bit antiquated as it is less common in society that women need more legal protection than men, but that was not the case when the laws were made.

I'm unfortunately unfamiliar with the legal incidents of marriage, as I said before, but I'd like to question what you said anyway :). What laws protect women without protecting men equally? That doesn't seem right. And I don't know what you mean by women, whether as a group or as individuals, needing more legal protection. Also, I thought women were pretty oppressed legally for centuries of American marriage. In any case, I'm all for appropriate legal protection of individuals; I'm against specific legal constructs that are, inappropriately, predicated (only) on the cultural side of marriage.

Um, the previous paragraph is sort of rambling, and it's my fault I didn't really understand what issue this would be relevant to.

You're probably speaking of intent when you talk about laws being designed to protect women, but then I don't understand what this statement about the presumed good intentions of past legislators has to do with SSM, or OSM. Aren't we talking about laws' constitutionality right now, as opposed to the good-hearted nature of their writers?

I do not believe that biological parents are better than adoptive parents, but children who are adopted often have more problems than children who are raised.

(By "raised", I assume you mean "raised by the people who conceived them." )

Says who? As I said before, my pure instinct would say that, due to the higher level of financial security and commitment required for adoption, the opposite would be true. And, uh, doesn't your statement that an adopted child has "more problems" imply that biological parents are indeed better parents?

Legal protections can be easily built into the adoption process rather than a marriage process for such cases.

The built in protections of marrige protect for unexpected children. Since it is impossible for homosexual couplings to result in unwanted pregnancy, there is no need to have such protections.

(By "protect for unexpected children", I assume you mean "legally protect unexpectedly conceived children" and not "protect parents from their unexpectedly conceived children.")

Whoa there. What legal protections do unexpected children deserve that adopted/"artificially" conceived/expected children don't? Look, if (legal) marriage is entirely about conceiving children (and I think it'd be better than the status quo if it were, although I'd change "conceiving" to "having") , then the legal incidents of adoption should be the same as the legal incidents of marriage, which calls into question the separate terms they'd be unnecessary, and thus cast doubt on the true intents of those who drafted the relevant legislation.

Basically, what I'm saying is that, whenever making arguments about the dependence of legal marriage on children, the presence of an actual child is needed. Because if you're saying that the mere physical possibility of conceiving a child requires the (potential) parents to be permanently legally bound to each other*, it implies that a permanent legal bond is (or should be) created whenever two people engage in sexual (or nonsexual, but that's, er, harder to imagine) activity that could result in conception. I fail to see how current legal marriage, which, yes, is an (ostensibly) permanent legal bond - but is made at the whim of the contractors, is independent of sexual activity, and definitely not created in the way described - fulfills the requirement stated above. And what about fertile heterosexual people who go to bed with someone different every night? Are they to be considered legally married to each one-night stand?

*(and I can't imagine why that should be the case)

I realize the last paragraph might come across as insulting that's absolutely NOT the intent. I'm simply extending your words as written to what I see as a naturally following conclusion. If I misunderstand your wording, do correct.

As for more clearly defining objective biological differences in men and women. An objective difference is the fact that women can become pregnant. A subjective biological difference is to say that men are stronger than women. One is proveable in all cases, the other is based on the subject and is not always proveable or even true.

I'd disagree with the examples you gave. One criterion you give for an "objective" difference is proveability. With a good scientific study, one could reasonably conclude (prove) that, as a group, men are stronger than women (with "strong" scientifically defined, of course). The other criterion is "true for any given man compared to any given woman." Your "objective" example, that a woman can become pregnant and a man can't, is false when the woman is infertile for any reason, or if the (always speaking in legal terms, remember) man was born intersex but classified on his birth record as male, and yet has female reproductive anatomy.

The discussion on justified discrimination is interesing, but not completely relevant to me in this case, however, because there is no discrimination in this case (under a legal objective definition). For more on that subject see my previous comment, which I suspect you didn't have a chance to read before your comment.

Um, I'm not sure whether you're talking to me or someone else. But no, I didn't have a chance to read all of your comments, and when I had time I made sure I did : ) . However, I'm not aware of any legal definition of discrimination that differs markedly from the dictionary definition, which is basically "to take notice of a distinction." Gender-specific requirements for marriage notice gender, and therefore discriminate between men and women. (Also, note that "discriminate between" doesn't equal "discriminate against".) The questions being discussed throughout this thread were whether this particular instance of discrimination is 1) constitutional and/or 2) advisable.

Of course, some legal definitions aren't obvious to the everyday observer, and if you can cite Supreme Court rulings (accessible to a suburban sixteen-year-old, please!) that do use a different legal definition from the dictionary one, I'd be happy to look at them.

What matters is in the law is objectively inequal, which is not the case here.

For the purposes of evaluating constitutionality, I haven't heard of an "objectively unequal" test. Maybe you're talking about advisability, but as you pointed out, that's a different matter.

(By the way, I've read your entire post just not including the stuff I didn't directly respond to.)

I don't know if this will clarify or confuse you. I am not anti-gay, I'm not even really against gay marriage.

Well, I might disagree with you on what anti-gay means, but I didn't make any assumptions about your views for or against gay marriage on a personal level, since we were debating constitutionality.

I do not approve of the homosexual lifestyle personally, but I think that my personal feelings on it should have no bearing on laws or on sensible practices in society.

Good! Honestly, government would be so much better if it realized that bureaucracy and legislation are better without personal feelings - and biases dictating them. I'm not sure what you mean by "sensible practices in society" I'll stick to laws for now.

On a serious note, though - I feel compelled to point out that there are, unfortunately, certain words and phrases that put a person on high alert for homophobic bigotry. "Homosexual lifestyle" is one of them. Years of use in a derogatory, slanderous manner, added to its lack of value as an actual useful descriptor, do make it quite offensive.

It's all in the connotations. "Lifestyle" usually implies something that dominates one's life (e.g. monastic lifestyle), and people who fall under the antigay definition (for lack of a better term) of "homosexual" resent the implication that that aspect of themselves necessarily constitutes a large portion of their life or identity. In certain contexts, it also conveys something highly recreational (e.g. lifestyles of the rich and famous) or sexualized (e.g. BDSM lifestyle) and it's very often used in exactly that context to imply that 1) queerness is a shallow affectation and 2)that "homosexuals" are all unrestrained sexaholics.

In addition: "Homosexual" has often been used in a derogatory fashion and, when used in everyday conversation, is the choice word of homophobic activists. Plus, things often included under "homosexual lifestyle," such as falling in love with someone of the same sex, are by no means limited to gay (homosexual) people.

Then there's the presumption that a stereotypical "lifestyle" is out there. A "homosexual lifestyle" doesn't exist "homosexual" can't describe a person's life, it can only describe a person. It'd be more accurate to state whatever it is you don't approve of, and that way you could at least avoid stereotyping the entire queer demographic that way.

Sure, linguistic flexibility is good, and I don't nitpick. But I hope you understand that I simply want to make it clear that there are indeed certain terms which have been given quite offensive connotations through their use, and I sincerely hope you didn't mean to use an offensive term, regardless of your personal beliefs.

It is better for homosexuals to be married than for them not to be, and so I think that such marriages should be allowed. I do not think that they are the equal of hetrosexual marriages in the benefit they offer and so I do not think that the state should have to offer all of the same incentives and protections. I do, however, have no problem with the people of a state deciding to do so.

The problems are that 1) "the benefit they offer" is a rather nebulous, not quite proven, and possibly irrelevant concept, and I'd still disagree with you on, for example, the advantages of adoption versus living in a genetically related household; and 2) a difference in "benefits" to society still doesn't necessarily make discrimination constitutional.

The basic idea is that(well, as far as I know, and I don't know a lot) discrimination, not lack of discrimination, has to be justified. Discrimination per se is not, repeat not, unconstitutional; however, the burden of proof is on the state whenever it wishes to discriminate, and it must meet the clear-and-compelling test to prove that the discrimination is relevant and needed. Although I certainly approve of this standard, it is not my personal opinion it's based on my admittedly limited knowledge of Supreme Court-established legal principles.

Ultimately the problem that I have with the issue is one of state rights. I believe that people are trying to bend interpretation of the constitution to suit their agenda and I disagree with that being done.

I think all of us would disagree with that being done! But we don't all agree on what "bending" is (uh, risqué sense unintended).

Kathy,

Nice to see you stopped by to comment:-)

Aaron: That is a possible argument for using the 14th Amendment, however, the law is allowed to treat men and women differently in many cases and it has not been ruled unconstitutional.

The fact that this has historically been done doesn't necessarily mean that doing so is always consistent with the principles embodied in the Constitution & Declaration of Independence. Remember that the SCOTUS only ruled anti-miscegenation laws unconstitutional in 1967 (that was two year after I was born!), so this country spend most of its history allowing such laws to exist even though today we would consider them obviously contrary to Constitutional & DoI principles.

Aaron: The deciding factor appears to be cases where the law treats men and women differently based purely on objective biological differences. (Examples would be issues involving Pregnancy and different physical requirements standards)

Pregnancy is a no brainer for the obvious reason that men (at least currently) cannot become pregnant. Obviously men cannot expect to have the right, for example, to have an abortion, but that is not likely to come up.

Aaron: To answer your question, the law certainly does discriminate by gender, but, so long as that discrimination has been based only on objective biological differences such discrimination has been allowed.

Historically it was considered an "objective biological difference" that women and non-caucasians were less intelligent and rational than caucasian men. So we should be real careful with that criterion.

Re: Transgender an people of indeterminate gender:

Aaron: I have no scheme, I am simply arguing the legal position that I see involving homosexual marraige. In my opinion, however, where people in those situations fit would likely vary from state to state (as I think this should be a state issue).

Let me get this straight (pun intended after I realized what I wrote). You think it should be left up to the states to decide whether or not a person who, for example, has the genitalia of the opposite sex (with respect to their chromosomes), should be allowed to get married?

What a nightmare.

"We're sorry "Ms." Doe, but even though you have always considered yourself to be a female, and regardless of the fact that you appear to be female in every outward respect, you have a Y chromosome and therefore in this state you are a male and can only marry someone with two X chromosomes. Heck you can't have kids so your marriage wouldn't really count anyway"

Under this plan are states going to have to start doing genetics tests on people moving from other states to determine whether or not they will recognize their marriage?

OK the "your scheme" thing was a little strong, I'm sorry about that, but I think you need to put a little more thought into the transgender issues here.

Me: The sole reason for disallowing gay marriage is that it offends the religious sensibilities of some people, period.

Aaron: That is simply not true. That is certainly one reason that many people oppose it, but it is certainly not the only reason.

Well I have yet to hear any others (not counting vague claims about the end of western civilization, the destruction of all that is good and decent in the world and the imminent legalization of pedophilia and bestiality).

Aaron: Why does the state recognize marriage at all?

That's a good question and a whole other debate. I think an argument could be made that we should simply have civil unions, for whomever (Adult humans of course). Whether it is called a marriage or not would be up to the individuals involved.

Aaron: It costs the state money to do so. The legal fees, documentation, tax incentives, court burden (mainly from divorce) are all costs to the state of recognizing marriage. They are costs that people have (at least at one time) decided to pay because there are also benefits to marriage.

Have you really considered this with respect to the actual number of people we are talking about, I mean gay marriage specifically? Homosexuals make up what, 3% of the population (Ed's number in another article)? Which is (again Ed's math) 8.5 million people out of over 280 million in the country. And of those, how many are actually going to want to get married?

Arguing the cost of gay marriage doesn't exactly rise to the level of "compelling interest" because we're are talking about very little money coming out of state coffers to cover the rather insignificant number of SSMs that would actually be involved. Especially when one considers the cost incurred by the current dismal state of heterosexual marriage in this country.

Aaron: It creates a better environment for raising children and it tends to reduce social and psycological problems for people, among other things. Children grow up to be taxpayers and productive citizens most of the time, and marriage increases the likelihood of both. Children born outside of marriage, on the other hand, are often very costly to the state, even when they become productive later. Certainly they are often far more costly than marriages are. In that sense it is an investment by the state in it's citizens. Homosexual marriage is different. It is not an investment to produce more stable children as future producers and tax payers.

As Ed has pointed out, repeatedly, the "no children" objection applies equally to childless heterosexual marriages (like my own). So to apply this standard equally you would have to argue that the states should be allowed to pass laws restricting the right of sterile (by accident or design) and/or elderly couples to marry.

Aaron: Some states will and should allow homosexual marriage. Other states will not. Both should be free to do so.

Ah, but there's that pesky 14 Amendment.

Me: Adult human beings should be treated equally under the law regardless of any other factors (gender, race, etc.)

Aaron: Should men get the same maternity leave that women get when their wives/girlfriends become pregnant? (and really consider that law...I don't think it would be a good idea to force a company to keep an non-working man on the payroll because he is able to impregnante a women every so many weeks/months)

What, "corporate welfare dads"? Give me a break.

First off some might even argue that even women should not be granted maternity leave given the fact that pregnancy is a voluntary state, and as has been noted, in some countries there are laws granting men maternity leave.

But granting the idea for the moment (at least for women), maternity leave is basically a form of temporary disability, and as you implied earlier, men cannot get pregnant, so why would they even need maternity leave?

Aaron: Should the physical requirements to enter the military be lowered for men to the same level they are for women?

No, they should be the same high standard for both. Most women (and some men) won't be able match up to it, but those few that are should be able to participate equally.

Aaron: Should men be allowed to use women's restrooms, and vice versa?

That is a cultural standard, and one that isn't constantly applied as many places don't have separate restrooms. And as Coffeedrinker pointed out there is the problem of transgender people again.

Aaron: Men and women are different and the law should allow them to be treated as such, as long as the discrimination is based purely on objective biological differences.

No, they should only be treated differently if the state can show some compelling reason for doing so. The mere existence of some biological differences is not sufficient in and of itself. There are minor biological differences between people of different "race", yet those differences do not constitute a compelling reason for the state to treat them differently.

Aaron: So far, the courts seem to have supported that limited gender discrimination.

It just needs to be a little more limited still.
From the SCOTUS decision in Loving v. Virginia:

The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. ...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 discriminations. 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.

Substitute gender for race and you've pretty much got it right there.

Is Kathy Britain the wife of Troy Britain? Enquiring minds wanna know. Troy and I go way back to the Compuserve religion forum 10 or 11 years ago, which hardly seems possible, does it?

Why Same Sex Marriage is Wrong

13 Reasons with Brief Rebuttles

1. Gays & lesbians make poor parents.

Studies show they are at least no worse than straight parents.

2. Children need to be raised by their biological parents

Also applies to adopted children and parents that divorce and re-marry other people.

3. A child with same-sex parents will be subjected to hate.

Also applies to children of mixed race or mixed religion in some cases.

4. Marriage is only feasible if the couple is monogamous; same-sex couples cannot be.

Many if not most heterosexual marriages are not monogamous. SS couples can be as monogamous an any other.

5. Same-sex spouses cannot bring children into the world by themselves.

As mentioned already, this reason would logically preclude infertile couples, couples who chose to have no children, couples who chose to have no more children, and older heterosexual unions as well. Also, lesbian women have the option to artificially inseminate one or both partners.

6. The "slippery slope" concern; if we condone that, then what's next? Polygamy? Men marrying their dogs?

Groups supporting SSM are asking for limited rights and not a free for all.

7. Children raised by gay or lesbian parents will become homosexuals as adults.

Such children of gay couples grow up gay as often as they do from straight marriage.

8. Homosexuality is immoral. Everyone knows that.

Yes, according to some religious groups, but our nation is not a Fundamentalist Christian Theocracy.

9. Same sex marriage would be a radical change to society.

If it were not for change, we'd still have slavery.

10. Marriage has always been between one man and one women.

No, it hasn't.

11. Same-sex marriage simply costs too much.

It would save more money by denying larger minorities like Blacks the right to marry.

12. SSM will damage international relations.

No more than a slew of other unpopular policies. Get in line.

13. Most people are opposed to SSM.

That's why we have a Constitution, so the majority simply doesn't become a tyranny over the minority.

Hello, Ed .and Lyn??

Is Kathy Britain the wife of Troy Britain?

I admit nothing and Ill deny everything! :-) We do have matching gold rings. Together 18 years, married for 12. Ive always shied away from forums and chat rooms etc. and let Troy be our computer mouthpiece. After hearing your name for years and having many discussions lately about the threads on your blog I decided didnt want to be a blog virgin anymore.

Hello Kathy,
Yeah, I am Lynn, (without a question) hahahaha Nice to meet you:-)

Hi Kathy. Yes, Lynn is my much better half. Welcome to the world of blogging. Anyone who has put up with Troy for 18 years has my undying respect. :)

Well I missed a bit over the weekend, but there are some things that I would like to respond to.

First of all, I certainly did not mean to offend with the term homosexual lifestyle. I had no idea that was considered an offensive term and would appreciate some direction as to what terms are more acceptable. When in doubt I try to go with more scientific (or perhaps more scientific sounding) terms, which is what I thought I was doing here. I certainly did not mean to imply that a homosexual's lifestyle is defined by his homosexuality. Rather, I mean that it is the homosexual part of a person's lifestyle that I disagree with. I don't have a problem with them as a person, or with anything in or about their life apart from their practice of homosexuality. Even that, I consider to be largely none of my business, so, while I think it is something that should not be done, I do not think less of people who do it. Just for the record, my feelings on hetrosexual activity outside of marraige are identical. I see it as equally wrong (which allows me to often offend just about everyone ;) and equally none of my business. The fact that I think it is wrong should have no impact on the lives or decisions of other people and should certainly have no impact on laws.

In short, if anyone has been offended by my terminology, I apologize. I did not intend to be demaning, judgemental or offensive.

To clear up some confusion that is apparant about my comment on marriage laws not being discriminatory. They certainly are discriminatory based on gender. My point was that they were not discriminatory based on sexual preference. So if you are arguing that they discriminate based on gender, you are correct and have a point.

To that end, it is true that the state should have to provide a compelling reason for said discrimination. I have described that reason as also having to be based on objective bioligical differences. Some have taken that to mean that there simply has to be such differences in those being dsicriminated against. That is not the case, the law has to be based specifically on such differences. One example was made about a blind person being made a security guard, which is a good one. Because it is an objective difference (having or not having site) which is a required function, such discrimination would be allowed.

On that issue you have pursuaded me. I suspect that, by my interpretation, the constitution would allow the state to not recognize the marriage of an infertile couple. I suspect that would never arise as an issue, because I am fairly certain that most people would not want such a distinction made. If some state decided to vote in such a law, however, it might be allowed. Though my previous comments on the idea that it is difficult to really know that a marraige would be infertile for it's duration would stand in many cases.

One of the examples that I threw out as an argument about men and women being treated equally (or not) was about physical requirements in the military. I phrased the question wrong a bit, when I simply asked if that should be allowed. What I should have asked is, "Does the contitution allow it?" The standards are different today, and for complicated reasons. A very breif summary is that it causes more damage to have a small minority in the military in terms of morale and psycological problems than to have a larger minority with lower physical capability. To get the numbers of women in military units needed for women to be effective they have lowered the standards. Right or wrong, is that a violation of the constitution? So far it is has not been ruled as such.

Regarding marriage as a protection for children and women:
I have never said that adopted children should have fewer protections than biological ones. All children should be protected to the best of our abilities. The point that I was making is that a married couple is the most desireable form of parent for children to have (obviously not all married couples are fit to be parents, but all other things being equal it is better for children to have good married parents than good single ones). By providing incentives for people who are likely to have children to marry, the state helps to provide an environment where more children are born to married couples than not. In having leagal restrictions on divorce the state provides an incentive for people to take marriage more seriously, to not abandon marriage easily, etc. This also helps more children to be in an environment where they are born into marriage and more likely to be raised by a married couple. It is certainly not a perfect system, largely because it is done with an effort to not take away the rights of anyone. It doesn't lock people into marriage, or force people to get married. It only provides an incentive to nudge people in the direction that is more beneficial for the state.

And it is the benefit of the state that I am primarily talking about. The state takes responsibility for the protection of children. As such, single parents are often a high cost to the state. Marriage is likely to save the state money because two parents are more likely to raise their children without assistance or interference with the state.

The same thing used to be somewhat true of women. In the past, most women were not able to easily enter the workforce and were not able to provide for themselves and their children. This was especially true of most women who stayed in the home and cared for their children and their husbands. They sacrificed the development of marketable skills for domestic ones. The husband then had a responsibily to care for the wife, even after the marriage ended. Alimony rose from that responsibility. The state prevented (or at least attempted to) husbands from abandoning their wives and leaving them with no means of financial support. This was not only for the protection of the women, but for the protection of the state, so that the state would not have to take up the financial responsibility that the husband abandoned.

My semi-final thoughts on this subject are as follows:

I perceive state marriage as primarilly a legal arrangement that was created and established for the state to help protect itself and its citizens from harmful behaviors. Some states have blood tests to protect people from entering a marriage without knowing about some medical conditions of their future spouce. Child support, alimony, divorce laws, etc. are established to prevent husbands from abandoning their financial responsibilities and leaving them to the state(and in some cases preventing wives from doing the same). In many cases, the state has a strong vested interest in using marriage to provise such protection, because without it, the state has to more directly take up the burden of support. No, it is not a perfect system. Many children are born to single parents, many people find ways around the laws to avoid their responsibilities, etc. The state doesn't force parents to marry, it recognizes their right to become single parents, however, it does provide incentives to encourage them to choose to become married parents instead.

With SSM, I don't see who needs to be protected. Women don't need the financial protection they used to. Men have never needed much financial protection. They cannot have children without other legal contracts being made, so there are no children in such a marriage that need protection. There is no unexpected pregnancy that makes one have to leave the workforce, etc. From the state's perspective I see it as a very different case. My view is that, as a different entity with different effects and needs, the state should be allowed to treat it differently.

To be completely honest, I don't understand most of the fuss over this issue. I can understand, even if I don't completely agree with the religious groups that don't want to pay for a lifestyle that they feel is wrong, but they are a minority. I don't really understand why this is an important issue for gays. I honestly don't care if the state recognizes my marriage(if I ever get married) or not. To be honest, it seems that it would be a lot less hassle if it didn't. It's not going to change my action either way, but it creates a lot of paperwork and restrictions that I have to follow. Sure it helps in some ways, I don't have to worry about setting up a trust, or setting up power of attorney, or things like that that are automatically established as part of marriage. I guess I don't get it. Perhaps that is why I don't really strongly oppose it. I don't see it as a big deal either way. I don't like the view of the constitution that says it must be allowed, but I don't really care much about the specific issue.

The only reason I see this as a big issue, is because it represents something larger in many people's minds. Acceptance or non-acceptace of gays. This whole issue has caused people to make a stand for or against gays in the eyes of many. I know that I am often labeled as anti-gay because of my arguments. In some ways, I suppose I am anti-gay, in the same way that I am anti-smoking. My views affect how I live my life and should not be imposed by force on others. Still, for a state to recognize SSM sends a message that the state, in some way, endorses homosexuality, likewise for them to ban it shows that the state in some way rejects homosexuality. I honestly think for most people(and I'm not referring to Ed or the commenters on this site with this) on both sides of the issue, that is the larger thing.

I can't help but think this because marriage is not seen as that big of an issue to people. More and more hetrosexual couples are not getting married simply because the benefits don't outweigh the hassle in their minds. So why does it become this big huge issue with gays? I don't know, but I suspect it doesn't have a lot to do with marriage.

In any case, I have enjoyed this discussion. Several of you have made some good points, and it's always nice to debate touchy issues without name calling and the like. That's one of the things I enjoy about this site and the commenters here, even though I seem to be the minorty dissenting opinion most of the time. ;)

I can't help but think this because marriage is not seen as that big of an issue to people. More and more hetrosexual couples are not getting married simply because the benefits don't outweigh the hassle in their minds. So why does it become this big huge issue with gays? I don't know, but I suspect it doesn't have a lot to do with marriage.

If it's not big an issue, then why are some (non-gays presuambly) pressing hard for state and federal constitutional ammendments barring SSM? Apparently those people, and I thought you were one but perhaps not, care a great deal about "protecting" marriage. If it's no big deal as you say, then let gays be married if they want. Seems like a big deal to some of them. What better way to protect marriage than by letting those who want to get married do it?

Dave S.,

While I am reluctant to speak for the intentions of others, my belief is because of the bigger issue that I mentioned. The endorsement or rejection of gays.

Certainly there are some people who see marriage as a sacred thing and see SSM as a corruption of something they value, but I suspect they are the minority.

And I do not support a federal amendment banning SSM. I would only support an amedment that made it strictly a state issue.

The discussion has been both enlightening and thought provoking. Some ideas about the cultural vs. the legal aspects of marriage had been bouncing around in my head; it was nice to see these put down in writing. The mention of compelling state interests reminds me of discussions of The Religious Freedom Restoration Act in the early 1990's.

Perhaps if we look at why marriage laws came about in the first place, we would have a better idea of who would qualify. What is the state interest, compelling or otherwise, to promote marriage through the incentives it provides? I would suggest these:

1. To promote a stable, lifelong, monogamous sexual relation between two people.

2. To provide protections for each member of the couple and their children.

A monogamous relationship ameliorates the ill effects both physical (STDs) and emotional (alienation, jealousy, instability) that infidelity can bring.

Protections include the financial and emotional support for the partner, if needed, but especially for the children.

Since marriage promotes monogamous sex, it can never be for more than two people. Since it involves sex, it cannot be for mere convenience, like two maiden aunts marrying for the legal privileges marriage provides. This doesn't cover incest, but that is prohibited for other compelling public interest reasons. Marriage is a legal contract, so the suggestion that people in this "anything goes" culture will soon be allowed to marry their pets is ludicrous .

So who can marry? Promoting monogamy between homosexual couples is as important as promoting it between heterosexual couples, perhaps more so. Those who complain about homosexual promiscuity should fully support gays and lesbians who are willing to commit to a monogamous relationship through marriage.

Four million children in this country are being raised by at least one gay or lesbian parent. Most are the result of previous heterosexual marriages that ended in divorce. Allowing a single gay or lesbian parent to marry his or her same sex partner would improve the emotional stability and financial security of these children just as the remarriage of a heterosexual divorcee does. I'm talking in generalities, of course. Don't come back with stories of ugly step-parents.

The children of gay and lesbian couples who become parents through adoption or artificial means deserve the same privileges and protections that marriage provides the children of married heterosexual couples. Treating children differently based on the sexual orientation of their parents seems like blatant unjustifiable discrimination to me.

If encouraging monogamous relationships and providing support and protection for children is the object of our marriage laws, then SSM should not just be allowed, but vigorously promoted.

Just found this and had to comment. Hope you don't mind me barging in like this

With SSM, I don't see who needs to be protected. Women don't need the financial protection they used to. Men have never needed much financial protection. They cannot have children without other legal contracts being made, so there are no children in such a marriage that need protection.

Actually, all these people *do* need protections in SSM. Particularly in male-male marriage, more couples have one partner staying at home with the children than in OSMs. That partner is then not getting the marketable skills they could, same as any woman staying home with children.

Also, because children of SS couples are achieved through means other than straight procreation between partners, that means that they are in extra need of those legal protections. And they *can* have children without other legal contracts... think turkey basters.

In sum, the argument that SS couples should not have the right to marry because they do not have children is inherently flawed because many SS couples *do* have children. And these children are the ones that suffer the most from our discriminatory marriage laws.

Aaron Pohle wrote: "And I do not support a federal amendment banning SSM. I would only support an amedment that made it strictly a state issue."

In this thread, many have mentioned the Constitution in regard to both the states' rights (10th Amendment) and equal protection and due process clauses (14th Amendment). These provisions are at odds in certain circumstances, particularly in view of Article IV, Sections 1 and 2, the full faith and credit clauses. Those clauses say in effect that if any state permits SSM, then all states must recognize the validity of such marriages contracted in that state. Aaron Pohle's comment does not take this constitutional provision into account--would he make SSM an exception to the general rule? Anti-miscegenation laws incidentally were not all black and white--most forbade whites to marry 'colored' persons but not, strangely, two different kinds of 'colored' persons from marrying.

Further to the discussion, there is merit to the argument that legal recognition (along with its rights and responsibilities) ought to be for those who contract a domestic partnership authorized by, and only by, competent civil authority; any other quality of the partnership, such as religious recognition, is properly the province of extragovernmental authorities and should not bind government. One of the odder things about the wider national discussion is the question of the 'sanctity' of marriage--if marriage is somehow sacred, it is by definition outside the purview of government because of the establishment clause (1st Amendment).