Judicial activism is a good thing, unless you disagree! And how long have we had it?

Great Debates
261

Actually, unlike you, I don’t support anti-SSM legislation. I was simply stating that I see no justification for having prevented SSM marriages from taking place prior to the recent statutes passing. The fact of the matter is that SSM is currently illegal in almost all states, and while I am appalled by that, and you apparently are peachy keen with it, I think that constitutionally speaking, all of the anti-SSM laws that are now on the books will one day be ruled null and void. If that’s supporting anti-SSM marriage laws, so be it.

Yes they are. We have currently shown that equal rights means diddly to a large portion of America. This makes me unhappy, but at least you’re not alone in your joy. Of course, whether they are covered by the Constitution is a whole different ball of wax.

Not true, if it turns out that the Constitution currently protects their right to marry. Once again, not all of us are in the “If the Constitution doesn’t explicit allow for it, it’s illegal” camp. I think that Article 4 covers it just fine, but I’m fully aware of the “public policy” exceptions that the courts have made in the past, to allow states to forbid such things as miscegenation, but we all know what happened to that. Heck, as broadly as some on the right think the First Amendment applies, you could even argue that it’s protected there, i.e., “By marrying this person, I am professing my love for them to the world.” Yes, I personally find it a stretch, but I also don’t find buying favors to equal speech, and there are plenty who think it does. If there was no room for “interpretation” of the Constitution, we’d have a pretty bored Supreme Court.

Correct.

We haven’t even begun to find out if there is a conflict or not. You might not find one, but you don’t speak for all of us.

I’m fully aware of the consequences of my logic, and you’ll never get an “assist” from me. If you want me to acknowledge that SSM is currently illegal in most places, as it stands today, I’ll agree with you. If you want me to acknowledge that it will pass constitutional muster, I’ll disagree. If you want me to jump up and down with joy at the fact that it’s currently illegal, I think I’ll pass and leave you to it.

Just peachy so far, thanks.

262

That may be, also. But when have they denied cert to a recent case that they could have taken up?

Your argument boils down to the Court could do it if they wanted. That’s absolutely and undeniably true. My point is that applying existing case law without wanting to reach any given conclusion – just applying precedential reasoning and the test mandated by precedential cases, the Court would not uphold an Equal Protection right to same-sex marriage.

Quite frankly, I think the odds are much better that the Court would uphold a Due Process right to same-sex marriage.

But in the end, if the Court were to hear a case and announce that sexual orientation is henceforth a suspect class, and entitled to strict scrutiny, and applying the strict scrutiny test the government’s rationale fails, then… that would be the law. And they could certainly do it.

However, going back to this point…

I’m not so sure I agree. If a case were heard this term, the opinion might be released in the spring. Assuming the Court found a federal constitutional right to same-sex marriage, that would give plenty of time for a revival of the Federal Marriage Amendment, and it would destroy perhaps the strongest rationales of FMA opponents: “It’s unnecessary.” FMA opponents argued that the Defense of Marriage Act was sufficient protection, and there was no need to amend the Constitution. That argument would be unavailable now, as the precise reason for the Amendment would have come to pass.

Do you really believe that under such a scenario, we would NOT see a Constitutional Amendment pass the House and Senate and the states?

The downside of that backlash is that the FMA would do more than reverse the Court with respect to a federal constitutional right to same-sex marriage; in its current form it would strip from the states the power to decide otherwise as well.

If you think things would go otherwise, please think back to the beginning of this month, and the eleven states that passed state constitutional amendments, the other states that already have them in place, the states that have LAWS in place, and think again.

263

Is that a camp that anyone belongs to?

Here is the fundamental problem, after 200 posts: Someone who makes a statement like the above can’t, really, understand how the U.S. Constitution (at least), or constitutional jurisprudence, works. No one on the right or left that I know has ever made the above statement. Really: please find me someone who has, on constitutional grounds, argued that “SSM” is forbidden by the Constitution because not guaranteed by the Constitution. That is what your characterization amounts to, in the realm of constitutional argumentation, which is what we’re engaged in here.

Interestingly, because we are not arguing WHICH policies the state should implement, if left free to do so with no interference from the Platonic guardians, all of my constitutional arguments work equally well in a regime in which 30, or 49, or 50 states electively endorse “SSM” and indeed declare a “SSM” celebration day filled with fireworks and parades. Can most of the “SSM” proponents say the same about their informed views of how the Constitution works, viz., that it allows for their fellow citizens to make choices with which they may agree or disagree, or is the Constitution, for them, a cudgel to make their fellow citizens, and even the citizens of states in which they don’t live, adopt their own policies? I acknowledge that your own post, while tendentiously phrased, does pay some acknowledgement to the situation as it actually exists in 49 states due to the democratic process. Even that limited acknowledgement, though, is by no means universal among the fans of legislation-by-Court.

“If the Constitution doesn’t explicitly allow for it or prohibit it, it is neither constitutionally legal nor illegal, and the states will decide.” Now that statement, I’ve actually heard and made.

See the difference?

264

You make a valid point. Perhaps the reason the gay rights activists have avoided federal courts is because they fear the backlash would spurn a panicked nation to pass a constitutional amendment, setting the gay rights movement back for decades to come.

It’s probably this, more than their belief that the court would rule against them, that has kept them from litigating it on a national level.

265

And think about how hard it would be to reverse things if a federal constitutional amendment were to pass. It would be next to impossible to repeal that amendment.

But I don’t for a minute think that the process is controlled by “gay rights activists”. There are enough lawyers out there who would love the attention, and enough potnetial plaintiffs who might want ot push things just to make a point. I’ll be VERY surprised if we don’t see the process started next year, for instance with a gay couple in MA wanting to file a joint federal income tax claim.

266

This post has been about the role of the judiciary and (hypothesized) “judicial activism” under the guise of constitutional jurisprudence.

As I pointed out above, in the context of this constitutional argumentation, it doesn’t matter whether I jurisdiction in which I live, or your jurisdiction, or none, or all, make “SSM” illegal or legal. It just matters whether they’re permitted to make this decision at all, or short-circuited by a court in doing so. My submission is that in the American system, this latter event should rarely happen, and that majoritarian policy choices of the several states are presumptively correct, at least as reflections of the policy desired by the citizens of the state. Having said that, as long as I know that the people of Massachusetts, or Arkansas, or wherever I live or might live, have the ability not to have their democratic will on the issue of how and when marriages will be recognized usurped, why would I jump for joy, or not, based on what they do with it?

Does Alaska not allow “SSM?” I guess not. Is Montana a community property state? Could be. Does Iowa make you take a syphillis test to get married? Dunno. Does Wisconsin enforce a 90 waiting period for a marriage license? They might. Does Kentucky allow first cousins to marry? Seems like something they’d do, but how the hell would I know?

I each case, whether I know what the policy is, or what my opinion is, really doesn’t matter. I don’t live in those states, and if I did and felt that their marriage law regime was oppressing me, I’d leave. If I were thinking of moving there but really worried that I couldn’t marry my first cousin, I’d stay where I was. Main thing is, it would just strike me as pretty weird, in the first place, for me to have any opinion on how people in a state other than my own regulated civil marriage, or to think, if I did, that my kibitzing in their affairs could be raised above the level of mere kibitzing by invoking the magic constitutional fairy dust.

I’ve noted before that I don’t exactly know why the state is in the business of sanctioning marriage at all. I don’t require it, really, especially if it’s just a form of benefits grab (though note that the supererogatory extension of unearned benefits to one group rather than another likewise doesn’t equal an automatic constitutional violation by any means). But get this – I’d really have a hard time being “appalled” even if the jurisdiction in which I lived (let alone some other goofy state) refused to recognize heterosexual civil marriage, as long as they didn’t interfere with my ability to make whatever religious memorializations I wanted to of my relationship with my wife. So, nor am I jumping for joy at the non-event of a non-existent “constitutional right” to “SSM” not being enacted. There’s just nothing to see there.

267

Today, coincidentally. Plaintiffs demanded that the MA SJC not be allowed to impose “tyranny” on MA’s democracy, but could not say how they’d been “damaged” by the case. Which is essentially where any anti-SSM argument founders, of course.

The discussion here would seem to lead to the opposite conclusion. Precedent being, most directly, Loving (replace “race” with “sexuality” for clarity), and basis for discrimination not being rational or even written down, for that matter. The strict-constructionist view certainly argues for SSM, while the efforts to show a case to the contrary have relied on so much after-the-fact rationalizations in an attempt to show rational basis that their efforts can only be described as “judicial activism” - an attempt to twist the law to comply with a desired result. The fact that their view is in effect over much of the country does not mitigate that assessment.

Yes, I believe it would have no better chance than the flag-burning amendment of passing both houses, much less 3/4 of the states. YMMV.

Why do you think popular attitudes can never change? They usually do, and sometimes very quickly.
stratocaster, better take a moment and consider just how seriously you wish your posts to be taken here, okay?

268

This much is readily apparent from your attempt to portray marriage as primarily about procreation. Really, if conservatives are so bent on preserving traditional institutions, is it too much to ask that they be aware of the true nature of those traditions?

Above I quipped that marriage is about property, and the orderly inheritance thereof. This is to no small extent true, but I don’t believe it’s actually the primary social function of marriage.

When we look through history, from the stone age to the information age, we see a vast panoply of marriage traditions. It is perhaps worth noting that in the relatively egalitarian settings of hunter-gatherer societies (where, if we want to get technical, the vast majority of our tradition actually lies) we see greater variety in how marriage is structured than we do in agrarian societies, where marriage almost universally adopts the “one man virtually possesses one or more women” form. But I’ll let those who are interested read the anthropologists who think that agriculture is the source of gender inequality. Anyways, throughout the vast array of marriage traditions, there are really only two common factors. One is that, as mentioned, marriage determines which children will inherit the parents’ property, and will even play a role in determining which non-children will inherit should there be no property. Naturally, this element isn’t very important in settings where there isn’t much property to begin with. The other common factor in marriage traditions is that they dictate which adult is responsible for which children. Now, in the ordinary case responsibility for children just follows parentage (unless we’re talking about those stone age tribes, who utilized practically every social arrangement you can imagine), but there are relatively common cases where it doesn’t. For example, in most standard wife-is-property sorts of traditions, if a man marries a widow with children, he’s now completely responsible for the children. Obviously we have relinquished most of the gender-unequal features that have been so prevalent in the marriage structures traditional in Christian Europe, but our marriage practices still determine child custody.

So, why is government in the game of recognizing marriage? Well, quite simply, because government is in the games of regulating inheritance of property and of holding people responsible for children in their custody. Neither of these are surprising, or even really optiona roles for government. There is a huge common interest in property passing from one generation to the next in an orderly fashion - it doesn’t matter how it is inherited, really, just that it proceeds in an orderly fashion without breaking into violent struggles for the goodies. And of course there is also a huge common interest in children being looked after. For every child, there’s someone who is legally responsible for that child. And this, more than anything else, has historically been the purpose of marriage. It determines who has what obligations to which children.

Now, if you think that government should just step out of the games of inheritance and holding people responsible for children, I guess I could see where you might think that government has no business recognizing marriages. But since most of the people who suggest that government should get out of the marriage game aren’t actually anarchists, we must presume that they are thinking that the government should still recognize a legal relationship which is functionally pretty much equivalent to marriage, but should refrain from calling it that because of the religious sentiments of a few people. This, however, is a silly semantic game being played merely to placate a bunch of people who don’t understand that marriage as a means of organizing society predates every religion but animism. Marriage is first and foremost a civil insitution, and always has been. The religious trappings are just that - trappings.

The above has nothing to do with the question of judicial activism, but since my last post actually on topic has been universally ignored, and I’m feeling left out, I just thought I’d share.

269

Not at all what I meant.

We’re discussing the existence of a federal constitutional right to same-sex marriage in this thread. When I asked if the Court had denied cert to a recent case they could have taken up, I was asking about cases that purported to find a federal right to same-sex marriage.

The case you mention has nothing to do with a federal constitutional right to same-sex marriage. No matter what disposition the Court had given it, the question of a federal constitutional right would have remained unanswered.

And for the record: a US Supreme Court that had granted cert and decided in favor of the plaintiff’s claims here would have been VERY activist: they would have been removing from the Massachusetts Supreme Court the power to definitively and finally determine what meaning Massachusetts law has.

I am sure that to the lay reader, the distinction between these types of cases can seem bewildering, which is, no doubt, why you offered up this case, believing in good faith that it was relevant. But this case has absolutely nothing to do with federal constitutional rights to same-sex marriage.

270

A penetrating observation whose relevance is vitiated only about 99.5% by the fact that I have made no meaningful attempt in the dozen or more posts I’ve added to this jurisprudential thread to “portray marriage as primarily about procreation.” Or were you rebutting someone else?

Really, if liberals are so bent on participating in constitutional debates, is it too much to ask that they be aware of the nature and contents of the Constitution and the arguments actually made by advocates regarding it?

271

Now, looking back, you may have been arguing merely that procreation would be a hypothetical basis for passing the rational basis test, but if that’s the case, I totally missed it the first time through.

Anyways, my post wasn’t so much about marriage not being about procreation as it was about why government recognition of marriage isn’t quite so optional as you were suggesting. I don’t suppose you’d care to actually address my point? Oh, and could you point out where in this thread I’ve misunderstood the contents of your Constitution or the arguments of Strict Constructionists? Thanks.

272

Well, but I’ll guarantee you they’ll be shocked that you feel that way. The distinction between state and federal still seems lost on so many.

Quiz for the amateur constitutionalists: Leaving aside the merits, and the lack of precedential-value from a denial of certiorari – what was the one aspect of the plaintiffs’ challenge to the Mass. S.C. that pretty much statistically guaranteed they’d lose? Give up? They brought the challenge under the “republican form of government” clause, which is rivalled as a stinker, can’t-win, non-substantive argument only by the “necessary and proper” clause. For extra credit, discuss how, tactically, plaintiffs might alternatively have brought their challenge under an alternative doctrine with some non-zero chance of success. In short, these plaintiffs were naiive, were asking for an extension of law that would probably have amounted to judicial activism, and their failure to get cert. from among the thousands of petitions filed each year doesn’t say much about anything.

273

Your alternate reading is correct.

My point about civil marriage of any kind being optional or less-than-crucial to me is that much of what I want to achieve vis a vis a wife or children I can and will achieve by contract and the probate system.

Did marriage serve an economic purpose in an age in which people weren’t literate, routinely died at an early age, had no social welfare system, and didn’t have access to $75 write-your-own-will software? Sure. Do your examples of intergenerational transfer of wealth (actually, they are principally examples of intestate succession) have less relevance in an era when people do not control large landed estates, or if they do, also have sophisticated legal counsel; when land or other tangible property (as opposed to pensions, etc.) are no longer the primary expectation of a source of sustenance for heirs and heirs-apparents; when the great majority of minors reach majority and economic independence well before their parents die; when women have independent economic means? Almost certainly.

And, we’ve already “interfered” with the pure economic arrangments that equated property rights with marriage rights. Persons (women and children of a man) can have property or economic rights absent their ever being married, through palimony and child support laws.

This is all very interesting, but I’m not sure where it gets us. Property rights and succession are defined and handled, routinely and adequately, through many legal institutions other than those directly appurtenant to “marriage.” Also, the problematic thing about your examples, at least as support for the necessity of “SSM,” is that they all do tend to circle right back to the procreative context. All the problems you mention as being historically addressed by marriage (intergenerational wealth transfer, etc.) apply, mutatis mutandis, much more strongly in the presumptively-procreative context of heterosexual relations likely to lead to issue. Now, to go back where we started, I submit that perhaps these and most other problems of wealth transfer, etc. can, these days, be administered for everyone through alternative mechanisms and that thus (in my hypothetical) no one really “needs” civil marriage. You seem not to agree? But if marriage is “necessary,” isn’t it, then, “most necessary” in the procreative context? I don’t know that I disagree with your take on history so much as I don’t see where you think it advances this argument.

274

Absolutely not. Who is married to whom plays the greatest role in determining the answer to questions of child custody, etc., when the child is not the biological offspring of the married couple. If humans naturally paired up into mating relationships that really were permanent, and never had children outside of wedlock, you wouldn’t need a social institution like marriage to resolve issues of child custody. It’s precisely because we don’t pair off perfectly that marriage is a social necessity.

If you’ll read the stories of gay couples, on this board and on others, you’ll find that many of the most agonizing crimes against them are precisely in these areas - gay person becomes critically ill, hostile family bars partner from hospital room, successfully challenges will, effectively stealing the couple’s home from the surviving partner. Or lesbian has kid in an ill-advised marriage while in denial of her sexuality, marriage falls apart, father disappears, kid is raised by mother and new lesbian partner for 12 years. Then the mother is killed in a car accident, and dear old dad crawls out of the woodwork and wins custody of the child, rather than the kid staying with the person who’s been a true parent all these years. In cases such as this, the legal weight of marriage would make a substantial difference. Marital relationships don’t trump all else in family law, but they certainly do have heavier weight than most other things.

You may think that you can duplicate the legal effects of marriage through contracts and wills, but you’re mistaken. Gay couples have tried to do so, but wills can be challenged, etc. Marital status places a much heavier burden on hostile family members who are trying to disinherit their relative’s partner. Moreover, marriage isn’t a contract between two people. It’s a contract between the couple and society as a whole. The rights and obligations of marriage don’t just fall on the parties being married, but must be recognized by third parties as well. You can’t draw up a contract between yourself and your girlfriend that will require third parties to acknowledge your relationship. Plus, of course, even if the effects of marriage could be duplicated in such ways, there’s no particular reason why one should have to pay a lawyer large sums of cash to achieve that. I mean, I realize you might think it’s good for business, but most of us would rather have the government offer this particularly popular batch of rights and obligations at a bulk discount rate, and sell them for 30 bucks down at the county clerk’s office under the name of “Civil Marriage License”.

275

Or purport not to, for that matter? In that case, you’re correct, but probably not for much longer, I’m sure you’d agree. I don’t know exactly where the inevitable challenges to DOMA are, but there doubtless are some in the pipeline.

Doesn’t it? You do have a predilection for considering cases on pretty narrow grounds. I’ll remind you again that the MA and US equal-protection guarantees are essentially identical. The subject of this thread, though, is judicial activism and its ability to be discerned in actual cases, a discussion which the MA ruling has invigorated. The inability of highly-motivated anti-SSM plaintiffs to cobble together a cogent argument against the ruling helps illuminate how a finding in their favor would be “judicial activism”, while affirmation of EP in the absence of a good reason not to is simply ruling on the merits as a court should do. I pointed that out already; do you have a reply?
Huerta88, it should have been clear to you that I already knew the challenge cited was bullshit. I also know that your “Marriage is for procreation” argument is bullshit, as is your “It’s none of the government’s business anyway” argument. Know why? :rolleyes:

276

Seemingly, because you know all, and are telling us so?

You’re arguing here with two arguments that I haven’t made. “Marriage is for pro-creation” is not my argument. It is an argument that could be made and probably has been at the state level for why the state would allow A & B to marry but not C & D. As I’ve disclaimed an interest in telling Kentucky or Mass. how to make such arguments, the only significance of such a hypothetical argument is that it is clearly one that could be advanced as a rational basis, and would qualify. If the state has an interest in increasing its population through procreation, than it can point to that interest in justifying (if it is ever called upon to justify it, given that state policies are presumptively their own justification) that policy by favoring a group of marriages at least some of which are capable of procreation from a group of which none are capable of leading to procreation. This is not “my” argument; it is an argument, and one likely to succeed.

Nor have I ever said “it” is none of the government’s business. I’m not sure what you mean by “it.” Do you mean jurisprudence? In which case, it is emphatically the province and “business” of the state to adjudicate it’s own laws, but generally not the business of the federal court to second guess those laws. If by “it” you mean marriage, I’ve never denied the state’s power and ability to regulate marriage. I’ve just said that I don’t particularly need it being invoked on my behalf, or anyone else’s. But if it is the state government’s “business” to regulate marriage (to the extent that any one state’s citizens are interested in having such regulations), whether they allow cousins, or same-sex people, or syphilitics to marry is not, in general, the “business” of the federal government. My personal disinclination to look to any governmental form or functionary to tidy up my family affairs was an aside, mentioned in the context of the rather breathless talk of people being “appalled” that state governments do not instantly extend a “SSM” right that has never been extended.

I suspect that somewhere behind your apparent confusion on all these points is a lingering inability to understand federal/state distinctions, which is a problem in a federal republic.

277

Really, it wasn’t clear. If you mean that it was “bullshit” because you disagree substantively, sure, I knew that you “knew” that, but I would rank such “knowledge” along with that of the armchair constitutionalists who “know” exactly what equal protection means, which is: exactly what they wish it to mean at a results-oriented policy level. This I do not regard as epistemological certainty, I am afraid.

If you mean that you actually understood what alleged constitutional doctrine the plaintiffs invoked, and why that particular doctrine is a surefire loser (because it’s never been given substantive content in interpretation) . . . no, honestly I didn’t know that. If you tell me that you were in fact familiar with the “republican form of government” challenge before today, and why it’s doomed (and thus why a plaintiff invoking it as his cause of action effectively has no standing to sue, because there is no claim for which relief could be granted), then fine; I suspect, though, that these details can still serve an illustrative purpose for the less-than-informed amateur constitutionalists who seem to abound, and whose arguments don’t always differ so much from some of yours.

278

Please stop before my head explodes.

The temperature of spit in Sumatra has nothing to do with the price of turnips in Tunis.

The case you mention has nothing to do with the MA or the US equal-protection guarantees. It is a collateral attack against the Massachusetts decision on the gorounds that it violated Article IV, Sec. 4’s guarantee of a republican form of government. It has NOTHING TO DO WITH EQUAL PROTECTION. NOTHING. NADA. ZIP. ZERO. ZILCH.

The plaintiffs in your case went to the Supreme Court and said, “Hey, Supremes! The U.S. Constitution guarantees each state a republican form of government. But in Massachusetts, the Supreme Judicial Court, composed of unelected representatives, changed the law all on its own, thus making them into dictators and denying us a republican government. Please tell them they can’t do that.”

Nothing to do with Equal Protection, and whther or not the Massachusetts and federal versions thereof are coterminous. OK?

Against the ruling in Massachusetts? There’s no arguing against the ruling in Massachusetts. It’s a done deal. The SJC said of the Massachusetts Constitution that it is more protective of individual liberty and equality than the federal Constitution, even where both Constitutions employ the same language. Rights not guaranteed under the federal Constitutuion may nonetheless be found under the Massachusetts Constitution.

If you have not read the dissents in Goodridge, they serve as cogent examples of … well… dissent, and well-crafted argument against the wisdom of the ruling. Ultimately, however, they have no precendential value. The bottom line is that in Massachusetts, the Constitution requires the state to permit same-sex marriage. THAT IS NOT TRUE ANYWHERE ELSE IN THE NATION.

  • Rick
279

But heterosexuals don’t by any means get all they want or need through civil marriage, contracts, or probate either. Millions of heterosexual men who have (1) been married; (2) biologically procreated; (3) supported and nurtured children for years are desperately unhappy at the failure of the institution of civil marriage to give them the “rights” they thought they’d secured by marriage, but which were taken away or limited by other civil and criminal laws on custody, child support, child abuse, etc. And, they’re lobbying, mightily in the political realm, for their vision of what rights “parenthood” or “marriage” should include. But no one’s suggesting that their constitutional rights are being violated (well, Fathers 4 Justice may be, but they’re also climbing Big Ben dressed as Batman).

All this proves to me is that civil marriage is an imperfect, limited tool, even for heterosexuals; is not always available on the terms they’d want it to be or to effect the purposes they thought it did; and, because its forms, foibles, and concomitants can be wildly transmuted by regulation, statute, and countervailing law, authority, or court, no one can make a constitutional or fundamental-right claim that the state can never deny them of a particular form or foible or benefit of civil marriage. From setting age limits on marriage to limiting divorce, imposing strictures and rules on access to (or out of) marriage has long been the rule, not the exception.

Once again, this doesn’t mean you can’t argue for or against particular new or alternate versions of marriage or “marriage.” It just means that these arguments are unlikely, in the context of our present discussion, to truly be of constitutional dimension or force.

Finally:

Carefully, now. You might do better with the “fundamental constitutional right to be joined to the soulmate you love” that I think we heard someone suggest earlier. That one, while of course not meaningful as a statement of law, at least doesn’t open itself up to being immediately nullified on its face the minute someone proves (as surely they can, in at least certain societies) that society, writ large, vehemently denies ever intending or granting its consent to a tripartite contract between it and two homosexuals to validate their “marriage.” Absent consent/acceptance of the contract by all ostensible parties, it’d be void ab initio, no?

280

Okay, so since the institution of civil marriage is not perfect, nor is every single person happy with the form it takes, that means that it’s worthless, and not worth fighting for on the part of gays, and denying it to them is no big deal. Have I got that right? You do realize that that’s a particularly bad argument, yes? I mean, really. My apartment has a doorbell that doesn’t work, and the thermostat is stuck, so that means that the homeless guy downtown would be silly to wish he had it? Sure. Whatever. That something is not perfect doesn’t mean it’s not worthwhile, and doesn’t mean that denying it to someone is no big deal.

And of course the particular form civil marriage takes doesn’t violate constitutional rights. The putative unconstitutionality being argued for here is due to the inequality of legally favouring the relationships of heterosexuals over the relationships of homosexuals. Is that really so hard to understand? Or are you just playing dumb? Inequality before the law. That’s the issue. Not the specific right to marry a person of the same sex. The right to equal treatment.

Oh do give me a break already. I suppose that interracial marriages enacted in Mississippi in 1968 are also void, because the people of Mississippi didn’t approve of them? Or are you denying that marriage entails not only rights and obligations between the married parties, but between them and society as well?

Obviously society holds inconsistent views. Society does favour equality before the law. Parts of society don’t recognize that SSM is entailed by that, but instead rationalize to themselves why it’s okay to deny marriage to gays. None of those rationalizations hold the least bit of logical water, but people make themselves believe all kinds of tripe to avoid cognitive dissonance, so they don’t recognize that either. So which belief of society should we be guided here? The belief in equality before the law? Or the logically fallacious rationalizations for why denying gays marriage isn’t denying them equality before the law?