Just popping in with a note that I am withdrawing from this thread. It was Cecil’s (rather asinine) column on SSM that first drew me to the boards and here, four years later, I’m still having the same damn arguments about it. I’m sick to fucking death of it.
Here’s a comment which undoubtedly will be seized upon by those with limited ability in reading comprehension.
IF. IF, a legislature were to find that same-sex marriage does not advance the goal of society to produce, protect and nuture offspring, and that opposite-sex marriage does, that finding would be sufficient to pass the rational basis test.
I await, sadly, the hysterical morons who will read the above and conclude that I agree with that hypothetical finding.
The above is merely a hypothetical designed to illustrate how low the bar is for the rational basis test.
- Rick
My initial reaction to this was “Cecil wrote a column on this?,” which led me to alight to the column archives to discover he had:
What’s the big deal about gay marriage? Why do we have marriage laws at all?
I am pleased to see that the Master’s opinion on this issue is roughly the same as that of Bricker and I. So tell me, Homebrew, nisobar, et al, is Unca Cecil a homophobe?
My initial reaction to this was “Cecil wrote a column on this?,” which led me to alight to the column archives to discover he had:
What’s the big deal about gay marriage? Why do we have marriage laws at all?
I am pleased to see that the Master’s opinion on this issue is roughly the same as that of Bricker and I. So tell me, Homebrew, nisobar, et al, is Unca Cecil a homophobe?
Huh? That doesn’t strike me as avoiding being insane at all. Prohibiting x because it fails to promote a goal of society? Makes no sense. Prohibiting x because it interferes with a goal of society, sure. But simply failing to promote that goal? I strongly suspect that wouldn’t fly. Dewey’s alternative basis, protection of public morality, has a much better shot, I should think.
I do think you guys are overstating your case, though. The last time SCOTUS found that an anti-gay statute passed the rational basis test was Bowers, and Bowers is no longer valid precedent. Romers found that an anti-gay statute failed the rational basis test. Yes, failed. The lawyers for the State of Colorado failed to present a rational basis that had anything to do with the statute they were defending. If it’s so easy to come up with a rational basis for something, those guys must have been really dumb.
And sure, SCOTUS didn’t explicitly find that the Texas sodomy law doesn’t pass it - though Dewey’s question, “Why did O’Conner write a concurring opinion? If the majority adopted her rationale for overturning the Texas law, why wouldn’t she just join in that opinion?” strikes me as missing the point. She wrote a concurring opinion because she didn’t agree with the due process finding, not (necessarily) because the rest of the majority wasn’t sympathetic to the equal protection claim.
I have a rather different take on this quip:
I read that as saying that the decision could have been made on equal protetion grounds - “that is a tenable argument” - not an explicit finding, but indicative nonetheless. But the majority didn’t wish to leave the decision at that, since it would have left Bowers intact, and led to a reversion to blanket sodomy laws, and they wanted to avoid having to rule yet again on the issue in another 10 years.
Or perhaps I’m mistaken, but that passage doesn’t read to me at all as if it’s suggesting that the equal protection approach alone wouldn’t have passed muster. I do believe the decision could have been found on both bases, which would be a point against my interpretation, I realize. But the language in that paragraph is basically saying “an equal protection finding wouldn’t be going far enough.” It is not finding against the equal protection claim.
More importantly, does the guy in the dress look like Bruce Vilanch to anybody other than me?
Well, actually…
The only thing here I see resembling your view is the first sentence, and even that is shaky. Of course one can accept gay marriage without wanting it enacted by judicial fiat. I don’t want it enacted by judicial fiat. I’d much rather see voters embrace the just view. But I rank the alternatives like this:
- Legislative reform
- Judicial finding based on a reasonable interpretation of the constitution
- Status quo
instead of having 2 and 3 reversed, as you do.
The rest of the paragraph here is a mass of fallacies and misconceptions, though. Cecil dropped the ball.
No, it’s an injustice that surpasses antimiscegenation laws. Gays and lesbians are currently denied any possibility of an emotionally satisfying marriage. Antimiscegenation laws never prevented anyone from finding an acceptable mate, just from marrying their first choice - injustice enough, true, but not as far-reaching.
Arguable, but even if true, irrelevant, given that at best marriage is seen as being the preferred situation for procreating. There is no hint in “the state’s motivation” of requiring procreation in marriage, else there would be regulations against infertile couples as well. Promoting “orderly propagation” is scarcely the only reason the government recognizes marriages (indeed, not even the primary reason, historically, which was always orderly transfer of property between generations).
And what does this have to do with anything? Is Cecil trying to suggest that fewer children will be born in wedlock if gays can start marrying?
Again irrelevant. And again Cecil appears to be suggesting that allowing same sex marriages would preclude “encouraging conventional marriage” in an effort to decrease the number of single-parent households.
For the most part, the column is fine, dismissing a number of overtly bigotted reasons to oppose same-sex marriages. But then Cecil apparently feels the need to be evenhanded, and launches into this ridiculous batch of non sequitors, concluding in the final paragraph by worrying about straight roommates getting hitched in a sham marriage, presumably for the tax benefits. :rolleyes: Like that would somehow be different and more worrying than the possibility of any other sort of marriage of convenience.
So, no, not terribly homophobic, but there some extremely clouded thinking is in evidence.
I’ll cut him some slack. A lot’s happened in four years, and public opinion has changed since then. Who knows? Maybe Cecil has changed HIS mind? There’s been a lot more public discussion about the issue since then, a lot more information is out there for people to think about. I actually know a guy who recently decided, based upon the arguments he was hearing, that he could support SSM.
You, on the other hand… Seriously, like I said before: what kind of progress can we possibly make pursuing this thread further when we can’t even agree on fundamentals?
Allow me to incorporate by reference Gorsnak’s last post.
But I’d also like to ask if you are really wanting to know if I think a fictional character is homophobic?
Were this the case, O’Conner would have simply wrote a very short split opinion saying, in essence, “I concur with my brethren on the equal protection claim, but cannot join their opinion insofar as it rests on due process.” That’s a pretty common thing, actually. She would not have had to write an entire opinion recycling the equal protection reasoning of the majority if the majority opinion in fact relied on that reasoning. O’Conner had to write her full concurrence because the majority in no way relies on equal protection as the basis for its decision. The outcome for Lawrence was 6-3 on result, but 5-4 on reasoning.
If it isn’t an explicit finding, it isn’t part of the holding of the case, and is mere dicta. Sure, you can argue that the court might accept an equal protection argument if they didn’t have due process available (though Lawrence provides little assurance that this is the case – saying an argument is “tenable” is not the same as finding it ultimately persuasive, not by a long shot). But that’s an exercise in tea leaf reading. At the end of the day, the argument the court explicity adopted was due process. It did not explicitly adopt equal protection (though it certainly could have done so even as it adopted due process at the same time; indeed, the court in Loving took exactly this twin-justification approach). Ergo, the opinion simply did not rest on equal protection arguments, and Lawrence cannot be cited as an example of equal protection jurisprudence (outside of O’Conner, anyway).
I was thinking Harry Knowles, actually… 
Cecil Adams is not a fictional character. It is a pseudonym for a real-life person. Those columns don’t just write themselves, you know.
Gorsnak, while you raise good points, I think on a couple of fronts you’re being unfair to Unca Cecil. To wit:
The state’s motivation in having a minimun driving age is to make the roads safer, in spite of the fact that doubtlessly many 15-year olds would make perfectly safe drivers and many 16-year olds (or, for that matter, 35-year olds) are menaces. The point being, some distinctions (or lack thereof) are made on grounds of adminstrative convenience. The costs and difficulty of determining if every heterosexual couple is both capable and desirous of having children is prohibitive. If one assumes the primary point of marriage (and state recognition thereof) is procreation (and, FTR, I do not subscribe to that view), the mere fact that we don’t screen for infertile couples, etc, does not make that view invalid.
No, I think Cecil is simply pointing out that marriage is still the primary vehicle for child-rearing in our society. This supports his contention about procreation being the primary reason for state recognition of marriage. I think it unfair of you to characterize that sentence as you have.
Again, I disagree with your analysis and think it terribly unfair. Coupled with the prior sentence, the bit you’re responding to is designed to further illustrate that marriage is the primary vehicle for child-rearing – that single-parent households and other nontraditional arrangements are decidedly in the minority. It also points out that the problems associated with single-parent households are evidence supporting the notion that a traditional marriage is a preferred environment in which to raise children, and is thus something our policies are designed to foster.
Incidentally, Cecil’s best point is in the last paragraph, which you noticeably did not address. Cecil wrote:
Which I heartily concur with. The problem with judicial solutions is that they generally have to be taken to their logical conclusions – if equal protection demands marriage for gays, why not for mere roommates? Legislatures are not bound by such pesky things, and are free to make distinctions along more intuitive lines. It is precisely the difficulty in drawing these sorts of lines that makes legislatures far more fit for the job than the courts.
Actually, I did address the last paragraph:
It’s simply false that gay marriage presents a host of tricky problems. It presents no problems whatsoever, nor have any legitimate concerns with it ever been raised, that I have seen. This roommates thing is just ridiculous. What roommates do you know who would like to entangle their lives irrevocably, barring the hassle and expense of a divorce, with everything that entails?!? None, I would argue, who would not be very committed to their relationship, platonic though it might be. In which case, who cares? And I don’t see you getting worked up about platonic male-female marriages, which no doubt exist. If they aren’t a reason for barring hetero marriage, neither is this silly roommates concern an issue for gay marriage.
Now, did I not state explicitly in my very last post that I would prefer legislatures deal with this issue? Yes, I did. Where I differ from you is that I prefer the courts establish justice rather than maintain the status quo if the legislatures are unwilling to correct injustice. I have explained why I think equal treatment under the law in this case is mandated by the constitution, and while you might disagree with my interpretation, you can hardly call it an unreasonable position. So I freely concede that a legislative approach is preferable. What you need to demonstrate is not that the legislative approach is preferable, but that the injustice of the status quo is preferable.
And for the record, I don’t think I was unfair to Cecil’s column at all. He attempted to present procreation as a necessary part of marriage, when it manifestly is not. A central part of many marriages, true. But the state has never concerned itself with whether there are offspring in the offing. Anyways, gay folk are perfectly capable of being parents, and many are, so if stable environments for the children are the primary concern, that is an argument for gay marriage, not against. In short, that paragraph, and the roommie argument in the final one, are fine examples of wrongheaded thinking. Complete non sequitors.
Well, that’s sort of the point. The roommate example is a kind of Reductio Ad Absurdum, an extreme example designed to illustrate the consequences of a particular line of reasoning.
And, again, this is precisely the problem with recourse to the judiciary: they eventually pretty much have to follow their own arguments to their logical endpoints (see, e.g., Wickard v. Filburn). Roommates may be an bit of a silly example, but that example is designed to illustrate the point that this particular line of judicial reasoning is likely to result in forcing the recognition of various other combinations as “marriages” which are neither desirable nor beneficial. This is not a problem with legislative solutions, as they can draw lines that aren’t 100% derived from some broad overarching principle.
Actually, I only have to demonstrate that your interpretation of the equal protection clause is incorrect. Unless, of course, you’re taking the Homebrew line that your own sense of capital-J Justice trumps everything else.
Again, the position that procreation is central to the institution of marriage is an arguable one. Disputing that is not unfair. What is unfair is your mischaracterization of Cecil’s use of statistics and his comments on single parenthood as a “parade of horribles” type argument against gay marriage. It clearly was not that. It clearly was simply evidence in favor of Cecil’s proposition that child-bearing is central to marriage.
Again, you can dispute that proposition, and you can dispute the notion that the proferred evidence supports that proposition. But you ought not misstate Cecil’s argument. In the passage in question, Cecil clearly wasn’t saying that “fewer children will be born in wedlock if gays can start marrying” or that “allowing same sex marriages would preclude ‘encouraging conventional marriage.’” He was simply saying that childrearing is central to marriage. Shame on you for suggesting otherwise.
Not so. They are examples used to illustrate a larger point. Pity you missed that.
What prevents a male-female pair of roommates from forming a marriage just for the benefits now? How is that any less of a danger than two men doing it once same-sex marriages are legal?
I know perfectly well what a reductio is, and that wasn’t one of them. It can’t have been an absurd conclusion, because the exact analogue of the roommates wedding is already happening, and no one thinks it a problem. No one, no one, thinks that it is reasonable for the motives of straight couples for marrying, barring outright immigration fraud or the like. This concern of yours is simply groundless, since it doesn’t concern you when people of opposite genders are involved.
Which you certainly haven’t done. You insist that a restrictive clause should be read into the 14th, even though it isn’t hinted at in the text even as much as the right to privacy, which you deplore, is hinted at in others. Moreover, you seem to think there is some objectively correct interpretation, when there are varying schools of thought on interpretive principles, and it is the height of arrogance to presume that only the one you espouse has any basis in reason when eminently reasonable people disagree with your approach.
I think you’re being overly generous, given the flavour of the paragraph in question. But even your interpretation makes Cecil wrong. The fact that procreation is central to many marriages does not entail that it is central to marriage, the institution, and even if it did, this would be no argument whatsoever for not allowing gay marriages, since (1) even if central, it is clearly not a necessary aspect of marriages, and (2) gays have kids too.
Again, I don’t think you quite take my point. The point of the roommate example is not to detail a real-world concern – I agree it’s far-fetched – but simply as an illustration of a larger point about judicial solutions. There is indeed a logical-endpoint problem when we turn to the judiciary to solve our problems. The concern here is that a broad constitutional right to marry will lead to Wickard-type results.
My position is grounded in the goals of the drafters of the 14th amendment, which is perfectly consistent with theories of jurisprudence I’ve espoused in other threads. And you, of course, would apply strict scrutiny to every government regulation, including economic regulation such as that in Dukes or Railway Express Agency. That would truly make a mockery of the law. I leave it as an exercise for the reader to determine which position is more tenable.
This is an exceptionally silly criticism. What it boils down to is saying “how dare you have the temerity to actually think your view is the correct one?” Well, duh. If I didn’t think my view was right, I wouldn’t be arguing the point now would I?
I recognize there are smart folks who disagree with me (and plenty of smart folks who agree, too). I am not obligated to preface every remark I have on this topic with a statement to that effect, nor am I obligated to falsely claim a belief in the strength of my opponent’s position.
My position has evolved over the years as I’ve heard good arguments against my past beliefs. I would happily incorporate such arguments into my position were they to be raised here. They have not. The arguments raised here are the same tired, stale arguments for living constitutionalism that I long ago rejected as insufficient. That being the case, I continue to believe my view to be the right one. I fail utterly to see why I should have to pay homage to arguments I find wanting just because others happen to agree with them.
A disputable point, to be sure. But all Cecil is claiming (and to reiterate, I do not share his “procration as basis for marriage” view) is that the fact that the overwhelming majority of children are raised in traditional marriages is evidence that traditional marriage is still the favored vehicle for childrearing. And that, it seems to me, ought to be a fairly noncontroversial point, even if you do dispute his larger point about the centrality of childrearing to marriage.
And again, your earlier characerization of this particular point was grossly unfair to Cecil.
Homebrew: Again, I think this is simply an illustrative point. See my first paragraph above for a fuller response.
Actually, not to speak for Dewey, but I agree that there are varying schools of thought here.
That is why I favor the Bricker Amendment. Surely you’ll agree that if the Bricker Amendment were adopted, the interpretation that I’m saying is the wisest (although, admittedly, not the only reasonable one) would then be the only possible one.
- Rick
Well, that would be true if any of the amendments discussed were filed…the Musgrove Amendment, the Bricker Amendment, or the Gorsnak Amendment.
But doesn’t the idea “Lets pass an amendment saying this is none of the court’s business” lead to the opposite problem? Because, if you’re going to pass the Bricker amendment about gay marriage, then to be consistent, when the next federalism vs. rights issue comes up, you’ll have to pass an amendment there, too. So then, after the Bricker Amendment, the abortion amendment, the contraception amendment (which along with a bunch of other amendments can be lumped into "The everything the Warren and Berger Courts decided amendment ", etc., you run the risk of a court that lacks any discretion to interpret the Constitution at all. You also end up with a Constitution that’s the size of the Code of Federal Regulations.