Connecticut Judges Require Gay Marriage

October 15, 2008 | 65 comments
By

In a case called Kerrigan, a majority of the Connecticut Supreme Court has ruled that Connecticut must institute gay marriage. As always, you can find good commentary at the Volokh Conspiracy and at Bench Memos. Among other things that Court relied on Connecticut’s civil union legislation as evidence that gay marriage was required.

65 Responses to Connecticut Judges Require Gay Marriage

  1. Kaimi Wenger on October 15, 2008 at 10:22 am

    The court’s civil unions analysis was definitely interesting. The New Republic summarizes the court’s reasoning:

    In order to argue that Connecticut’s civil union law did not discriminate against gays and lesbians, lawyers for the defendants were forced to contend that civil unions are basically the same as marriage. The majority opinion summarized their argument this way: “[T]hey asserted that the plaintiffs had failed to demonstrate that they have suffered any harm as a result of the statutory bar against same sex marriage because, under the civil union law, gay persons are entitled to all of the rights that married couples enjoy.” Logic like this puts gay marriage opponents in the odd position of devaluing the institution of marriage. Marriage, they end up arguing, is nothing so special that it can’t be replicated by a parallel institution–in this case, civil unions. Yet the entire point of creating civil unions is to preserve what is allegedly special about the institution of marriage. There is a pretty blatant contradiction here. Either there is something special about the label “marriage” or there isn’t.

  2. TT on October 15, 2008 at 10:42 am

    I like the NR analysis. I have been confused by the arguments for Prop 8 that “marriage” doesn’t provide any additional benefits to homosexuals, while at the same time claiming that if we were to grant homosexuals these benefits, the world will fall apart. I am not sure how one can hold both positions, in the same way that this case seems to suggest that if civil unions are actually legally the same as marriage, why exactly are the called something different?

  3. Dan on October 15, 2008 at 10:46 am

    I like the New Republic’s response. If the only difference between “marriage” and “civil union” is name, doesn’t that, by default diminish the supposed value of “marriage” if it essentially the same as “civil union?” What is the point of having this difference in name when in substance it is essentially the same thing?

    Face it guys, America needs God’s impending punishment before this country realizes that, no matter how much it makes logical sense to allow gay marriage, it just cannot be for a nation that believes in God.

  4. Silus Grok on October 15, 2008 at 10:53 am

    Ugh. Dan … please.

  5. Dan on October 15, 2008 at 11:05 am

    Silus,

    I’m not calling for God to actually punish us. What I’m saying is that barring that, there is no real argument left to make that would make any real impact against gay marriage in America.

  6. Nate Oman on October 15, 2008 at 11:09 am

    TT: It seems to me that the answer is that marriage means two things. It is a set of legal relationships meant mainly to resolve property disputes within couples and between couples and their creditors. It is also a public marker of collective legitimation for certain kinds of sexual relations. Civil unions are a way of granting the first set of benefits without granting the second set of benefits. The world-will-fall-apart-arguments assume that the public legitimating function of marriage can be seperated from its largely property-based legal incidents and that to include same-sex unions within this ambit would reduce marriage’s legitimating force in the marginal case. It is also worth noting that once a civil union statute is in place, proponents of SSM are no longer arguing that they ought to be granted a set of legal rights, per se. Rather, they are insisting that the state in effect bless their unions in an expressive sense.

  7. Kaimi Wenger on October 15, 2008 at 11:23 am

    Nate,

    I think there’s something to your initial analysis. Marriage does have multiple meanings.

    However, it’s also true that SSM opponents have been awfully unclear (to read it charitably) in their attempts discuss which prongs SSM would or would not affect. Or rather, opponents seem to want to be granted the first definition when making statements like “gay people don’t lose anything if there’s no SSM,” but the second definition when saying things like “marriage is a vitally important right and is the foundation of society.”

    I mean, if civil unions really are just as good as marriage in all relevant regards, then why not just switch to a civil union system for everyone?

  8. Silus Grok on October 15, 2008 at 11:25 am

    The restate certainly sounds better.

    Anyway … I wish I had the legal training to say what my gut feels. But here goes, regardless: no wonder we’re loosing in court cases! We’re trying to call this that and that this. In my mind, it’s simple (which may be the beginning of my problem). Marriage is three things: a social/civil contract, a religious rite, and a cultural avowal of love. For gays wanting to enter into same-gender unions, the first to options are generally available. Home-spun ring ceremonies and myriad religious rites are theirs for the taking. But civil marriage — which, until all of this craziness began, was a union between a man and a woman — is not. But marriage — if they’re willing to live by the definition — is still available to them. The alleged discrimination is the same sort of discrimination which underlies so much of our legislation — tax credits for home owners above and beyond such tax credits for renters. Society sees certain arrangements as being categorically better than others… and they bless those arrangements. A hetero household is one such (of many) arrangement.

    Love has nothing to do with civil marriage… and until the lawyers are willing to say as much, I think we’re in for a heap of trouble.

  9. Nate Oman on October 15, 2008 at 11:27 am

    Kaimi: I think that you are quite right that those arguing against SSM have been sloppy on this point. I would simply add that those supporting SSM have been equally sloppy, frequently trotting out horror stories of the legal difficulties faced by gay families in the absense of marriage rights. Ultimately, I think that this is an argument about who gets to use the expressive power of the state. Period.

  10. Silus Grok on October 15, 2008 at 11:28 am

    ( We’re not only loosing them — like hounds — but losing them as well. )

  11. Kaimi Wenger on October 15, 2008 at 11:28 am

    I should note that, to his credit, Adam G. has not in any instance that I recall used such mealy-mouthed arguments himself. His position as I recall has typically been more along the lines of: Yes, marriage is a benefit, and no, I don’t want it to be available in the same-sex context; and that’s just tough cookies.

    That’s a much less politically palatable position than the “denying SSM isn’t really hurting anyone” stance; but it is, I believe, more of an honest and internally consistent assessment.

  12. TT on October 15, 2008 at 11:35 am

    Nate, I am not sure that “insisting the state in effect bless their unions” is the same thing as the second meaning of marriage that you suggested: “a public marker of collective legitimation for certain kinds of sexual relations.” That is, legitimation and blessing seem to be two different things.
    For the argument to work, it seems that civil unions must constitute a non-blessing, or an illegitimation of homosexual relations, which it accomplishes by saying that these relationships are not marriages. But, if one insists that this is not a violation of homosexual couples rights, but simply a semantic distinction, then I have doubts about the state’s control over such semantics.
    Further, while I see the logical distinction between a separate but equal approach to marriage and civil unions, it sure seems to hang a lot on the application of a single term. Most of the arguments against SSM, such as sex education in schools, gay couples raising children, and even tax status for religious institutions, seem to be premised on the idea that these risks are present when gay couples enjoy certain legal rights, not certain labels. If all of the same legal rights follow from civil unions as from marriages, it seems that school and religious institutions’ legal vulnerability is not different under either system (if you believe that such vulnerabilities are real).

  13. Chris Williams on October 15, 2008 at 11:43 am

    #6 It is also a public marker of collective legitimation for certain kinds of sexual relations.

    Really? Is that what the state does by recognizing your marriage? I can’t speak for all gay people, but I think generally speaking we are less interested in collective legitimization of our sex lives than we are in collective legitimization of our commitments to each other–a commitment which supports our families and society in general.

  14. Steve Evans on October 15, 2008 at 12:02 pm

    “Judges Requires”

    [Editor: I forgot to put on my tinfoil cap when writing the headline so evil government mind-beams forced me to adopt a liberal, even wide, grammar stance.]

  15. Peter LLC on October 15, 2008 at 12:07 pm

    As a resident of California, should this decision impact my vote?

  16. Jim Cobabe on October 15, 2008 at 12:10 pm

    I have read the post and comments with great interest, although I am neither married nor seeking to legitimize a homosexual relationship. I wonder, though, why some see the marriage covenant as a special arrangement, but then think they can arbitrarily force any relationship to have the same benefits. I love my Toyota 4Runner, but I do not expect or demand that the state recognize that affection by granting us a marriage.

  17. Steven B on October 15, 2008 at 12:17 pm

    A very readable synopsis of the decision and dissents, by New York Law School Professor Arthur S. Leonard, can be found at Leonard Link.

    Also of interest is what the LGBT readers at the Independent Gay Forum are saying about the ruling. Money quote:

    . . . most political observers in Connecticut agreed that the conversion of civil unions to marriage was just a matter of time, and “sooner rather than later.” The state’s steady stream of pro-gay legislation, topped off by civil unions, makes the idea that gays need the court’s protection from a hostile majority seem obsolete. So says the dissent, and I’d add that, as a political matter, we ought to be maturing beyond official victim status, not welcoming it.

  18. Nate W. on October 15, 2008 at 12:17 pm

    Nate O. (6):

    But given that the state denies that the first set of benefits (let’s call them substantive benefits) must be reserved for opposite-sex couples, does the state have a legitimate interest in denying the second set of benefits (status benefits)? It seems to me that when you set up a parallel institution for same-sex couples that is indistinguishable from marriage except that it’s called something else, there is only one reason for that. It is to signal that these relationships, while being legally the same, are lower in status than “true” marriages. Setting up a parallel institution for the purpose of stigmatizing a disfavored group is a purpose based solely on animus and irrational prejudice, and such a law would lack rational basis, violating equal protection. See City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) (Ruling that because a zoning ordinance was based “on an irrational prejudice against the mentally retarded” that the ordinance was without rational basis); Romer v. Evans, 517 U.S. 620 (1996) (holding that Amendment 2’s “sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.”); Dept. of Agriculture v. Moreno, 413 U.S. 528, 534 (1973) (“[I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”).

    If you disagree, what kind of interest do you see that would pass real rational basis scrutiny?

  19. Steve Evans on October 15, 2008 at 12:22 pm

    Again:

    “Judges Requires”

  20. gst on October 15, 2008 at 12:28 pm

    Steve, as ever, you cut right to the heart of the matter.

  21. Silus Grok on October 15, 2008 at 12:40 pm

    Would someone please fix the typo in the post title so Steve Evans can stop obsessing?

    :)

  22. Researcher on October 15, 2008 at 12:44 pm

    They say that subject-verb agreement is the first to go, followed by a loss of adherence to traditional marriage, and shortly thereafter, they’re burning Christians in the coliseums.

    (Do not mistake this for a comment on SSM. I hope you all know my position on that topic.)

  23. Steve Evans on October 15, 2008 at 12:48 pm

    If we cannot have traditional grammar, how can we have traditional families?

  24. Kaimi Wenger on October 15, 2008 at 12:52 pm

    I support Adam’s right to grammar equality. It takes all kinds of words to makes a sentence.

  25. Julie M. Smith on October 15, 2008 at 12:52 pm

    I fixed it.

  26. Tom on October 15, 2008 at 1:04 pm

    A question for you lawyer types from an ignoramus: it sounds like most of the legal case for gay marriage is based on equal protection; gays are discriminated against when marriage is limited to heterosexual unions. Given that laws defining marriage as one man/one woman don’t prevent any individual of any orientation from entering into such marriages, doesn’t the equal protection argument depend on treating couples as the protected entities rather than individuals? I’m wondering if that is a new way of seeing equal protection? In the decisions striking down anti-miscegenation laws, was it the right of the interracial couple to marry that was established or was it the right of individuals to marry a person of another race that was established?

  27. Josh Smith on October 15, 2008 at 1:24 pm

    In the past I’ve been a judicial restraint guy. I’ve been a representative government guy. Particularly on cultural issues involving groups with significant political power–let them fight, reach compromises, and make the best of the outcome. Well … I’m done being that guy. I now see that my prior views will leave me a grumpy old man whose only comfort is a subscription to National Review.

    Today I shake the starch out of my judicial-restraint undies! (Against my better judgment, I’ll leave that sentence as it’s written. No snarky remarks please.) Today I’m reborn. Anytime 4 judges carry a slim majority, anytime 4 judges try and answer a deeply divisive cultural issue with 65 pages of self-righteous pomp, anytime 4 judges preempt the political process because the constitution “required it,” I’m not going to care. Not anymore. I’m done with it. … I feel better already.

  28. Nate Oman on October 15, 2008 at 1:25 pm

    Nate W.; The cases that you cite are not apposite because in all of those instances there was some legal detriment suffered by the parties other than the expressive action of the state. It seems to me that denying the label of “marriage” to civil unions that otherwise have the legal incidents of marriage is really about the content of government speech. There are some limitations on government speech, most notably the Establishment Clause that disallowes the government from making certain kinds of religious statements. I am not sure how far the equal protection analysis extends to government speech, but niether Clereburne nor Romer squarly address the issue. For what it is worth, this is not my argument but Larry Tribe’s, or at least it was the argument that he was making in my con law class in 2001.

    Would government speech in this case pass rational basis scrutiny? I think so. (Heck, I think that marriage in the absence of civil unions passes rational basis scrutiny!) It seems to me that the government can say something like, “We think that the expressive benefits of marriage — namely encouraging heterosexuals to form long term relationships — would be undermined in the marginal case if marriage was made a catch-all for committed sexual relationships. The benefit may not be huge and it is based on arguable empirical claims, but to pass rational basis scrutiny we don’t have to have anything more than this. Notice, our argument here is not based on the desire to stigmatize homosexual unions but rather to preserve the expressive benefits of marriage to marginal heterosexual couples.”

    TT: In a sense I agree with you. It seems to me that what civil unions allow communities to do is express ambivalence. I take it that the logic goes something like this:

    Homosexual unions are hardly so pernicious that we ought not to accomodate the property and other legal arrangments of gay couples. By providing them with legal benefiits we are willing to place our approval to a certain extent on these relationships. On the other hand, we understand that “marriage” as a social marker has a history and meaning that is tied up with more than its legal incidents and we are not willing to extend this marker to homosexual couples. In short, there are some relationships that we think are good, but lacking the long history and tradition of associated with traditional marriage we are not willing to say are of equal social significance.

    What the Connecticut Supreme Court decision in effect says is that communities cannot express their ambivalence about the issue, which must instead be turned into a Manichean struggle where homosexual families are either condemned root and branch or where communities lack the ability to express any ambivalence about the redefinition of an important social marker.

    Chris: By all means substitute “commitment to one another” for “sexual relationship.” I was not trying to be purient or imply that gay relationships are all about sex. I am simply pointing out that the argument over “marriage” is not an argument about concrete legal benefits but rather about the expressive value of the state’s speech. For what it is worth, I would argue that one of the things that marriage has traditionally done is act as a legitimater of sexual activity among heterosexuals. Certainly, I think that is one of the more important things that it does in my relationship with my wife. Before we were married there was nothing illegitimate about our intense affection, but I think that large swaths of sexual conduct would have been illegitimate. Of course, with the decline of norms against extra-marital sexual activity, this as — as an empirical matter — increasingly less the case. Increasingly, I think that people look to affectionate bonds rather than the social institution of marriage as the criterion for dividing legitimate from illegitimate sexual activity. In some quarters, even affection has ceased to be the dividing line and we are down to consent. The odd thing about the push for SSM is that it is a battle over the legitimating force of marriage when that legitimating force is much weaker than it was in the past. Obviously, marriage still does a lot of work in our society, but not nearly as much as it used to do. There are two ways of viewing the SSM wars in this sense. It can be seen as evidence of the rising legitimacy of homosexual unions, i.e. they are legitimate so lets bring them within marriage, the great legitimater. Alternatively, it can be seen as evidence of the lower salience of marriage, i.e. we feel ambivalent about homosexuality but it isn’t as though marriage is the abiter of how we’re supposed to feel about relationships anyway. For my money, both forces are at work.

  29. Nate W. on October 15, 2008 at 1:31 pm

    Tom (26):

    Not really. The Courts have historically phrased the marriage right as the freedom of the individual to to join in marriage with the person of one’s choice. You are correct that all gays and lesbians currently have the right to marry someone of the opposite sex. That rather misses the point, however. This is the same argument that opponents of miscegenation tried in Loving and Perez: they argued that there was no fundamental right to interracial marriage, and that everyone had a right to marry a person of their same race. As many courts have pointed out, this argument plays semantic games and avoids the substance of the liberty interest of the individual. The “no right to same-sex marriage” argument (along with all of its relatives in arguments about interracial marriage, contraception, etc.) is a clever bit of sophistry unworthy of a freedom-loving state; it is an argument that says that you can only have your rights protected if you were powerful enough to avoid persecution in the past. This argument sets up the Constitution as protecting the strong against the weak rather than the other way around.

  30. Nate W. on October 15, 2008 at 1:37 pm

    Thanks, Nate. I’ll have to seriously consider your argument. I’ve been asking my question since In re Marriage Cases was handed down and that’s the first time that someone’s actually answered it.

  31. ECS on October 15, 2008 at 1:38 pm

    Josh Smith – yeah, wouldn’t it have been nice if we could have “not cared” about the 5-4 majority in Bush v. Gore?

  32. Nate Oman on October 15, 2008 at 1:44 pm

    ECS: Do you care about the majority in Bush v. Gore? Do you regard the outcome of the process legitimate because Sandra Day O’Connor thought that all that messiness in Florida needed to stop?

    I didn’t think so…

  33. ECS on October 15, 2008 at 1:55 pm

    Nate – sure, I care. Whether the outcome is legitimate is beside the point. The process “we” have chosen, however, is that the U.S. Supreme Court is the final arbiter of such issues. If you don’t like it, find a case with which to overrule Marbury.

  34. Nate Oman on October 15, 2008 at 2:06 pm

    “Whether the outcome is legitimate is beside the point.”

    Obviously you care if you care about who sits in the White House. This is not what I was asking about. Rather, I was asking whether you “care” in the sense that you regard the fact that a majority of justices reached a conclusion as a reason for believing that the conclusion is actually grounded in some supra-democratic thingy-ma-jig called the Constitution that makes the decision “right.”‘

    “If you don’t like it, find a case with which to overrule Marbury.”

    I’m working on it. The notion that the Supreme Court’s original jurisdiction can’t include writs of mandamus is outrageous! ;->

    I am actually sympathetic to Jeremy Waldron’s claim that we cannot resolved contentious political debates by reference to fundamental rights because the scope of fundamental rights is precisely what is politically contentious. Much as it makes American lawyers glum, it may be turtles all the way down…

    (Of course, it goes without saying that I am still glad that Marshall found clever ways of making Jefferson’s life hellish and that the Federalists continued to influence American politics from beyond the grave via the federal courts ;-> )

  35. Nate W. on October 15, 2008 at 2:31 pm

    Nate:

    These questions are asked just to flesh out my thinking on this–I know just the barest outline of the government speech doctrine. Help me out with this counterfactual: Suppose Virginia allowed interracial couples to enter into a union that was functionally and substantively the same as marriage, but it was called something different. Virginia claims that their reason for doing this is to express their disapproval of interracial relationships. Is this allowed under the government speech doctrine? If not, is it because of strict scrutiny? Thanks for your help.

  36. Adam Greenwood on October 15, 2008 at 2:49 pm

    The Nate Oman et interlocutors discussion has been enlightening. Thanks, all. Also, we learned an important lesson today about subject-verb agreement, and that lesson is that Steve Evans is pretty sharp. For a Canadian.

  37. Steve Evans on October 15, 2008 at 2:51 pm

    (bows humbly)

  38. Adam Greenwood on October 15, 2008 at 3:08 pm

    (returns the bow, arrogantly)

  39. Jim Cobabe on October 15, 2008 at 3:48 pm

    Adam,

    You say a lot more than I am willing to concede.

  40. Nate Oman on October 15, 2008 at 4:21 pm

    Nate W.: I have to say that I honestly don’t know the answer to the question. (On the other hand, I do have a well-developed opinion about the treatment of payment streams that have been seperated from chattel paper in securitization transactions.) From what I gather, this case hasn’t come up, and outside of the context of religious speech, the government’s speech is not generally subject to judicial scrutiny. One place to go looking for cases is in the Court’s abortion jurisprudence. Here my understanding is that even though there are certain actions that are constitutionally protected — e.g. late term elective abortions — the government may nevertheless SAY that this action is morally reprehensible, and ought not to be taken. It’s been a long time since I looked at this law, however, and it isn’t something that I ever looked into extensively.

    Incidentally, I think that the micegination case is complicated by the 13th amdment and the notion of the badges of slavery. For example, I think that there might be an argument that the government could not constitutionally refer to African Americans as “ni**ers” not because doing so would violate equal protection under some sort of 14th amendment right not to have the government speak ill of one, but rather because given the history of the term such speech on the government’s part would constitute a badge of slavery. Just a thought…

  41. Nate W. on October 15, 2008 at 4:46 pm

    Thanks a lot Nate, I’ll look into it.

  42. Courtney on October 15, 2008 at 5:00 pm

    There are number of rights that same sex couples do not receive through a civil union, nor through marriage at this point in time. For instance, our current immigration system does not allow gays to sponsor their partner, whether they are married or not, to live here in America. Until gay couples are recognized on a federal level, though marriage or whatever wording you\’d like to use, gays will not…do not have equal rights.

  43. MikeInWeHo on October 15, 2008 at 5:29 pm

    re: 42
    That is a very important point, Courtney. It makes the whole Prop 8 battle even more ridiculous. Without federal recognition of SSM, many benefits do not accrue. The immigration example is perfect.

    I would happily compromise. Give gays nationwide civil-unions that are federally recognized and provide all the protections of marriage, and y’all can keep marriage to yourselves. No problem with that at all. Goodness knows I’d probably get booted out of West Hollywood for saying that these days, though. People don’t seem to be in a compromising mood in CA right now.

    BTW, thanks Nate O for your great comments. I feel like we should get continuing education credit just for reading this.

  44. Blake on October 15, 2008 at 5:31 pm

    What the Conn. decision misses entirely is that the State has a much greater interest in promoting and protecting heterosexual relationships than gay relationships. The Court should only require a rational basis for the State’s decision and allow it to make distinctions based on differing interests.

    Further, how can the State do anything more than a civil union in reality — ever? The State doesn’t give religious blessings. Marriage is historically and still primarily a religious rite that blesses a union. Let the State give civil protections and civil unions — but to do anything more violates an important distinction. Let religions do marriages and states do civil unions. The State recognizes contractual rights. The benefits and protections of marriage ought to be extended only where the State either has some overriding interest to protect and promote a relationship or to recognize a differing status.

    The courts, including primarily California and Connecticut are asking the wrong questions. The right questions focus on the reasons a State has to protect and promote a relationship and whether those same interests exist in other types of relationships. It appears to me that the courts in these states are going out of their way to avoid the relevant questions to reach their pre-determined liberal conclusion with the exclamation: “we lead the way to freedom!” In so doing they simply substitute their judgment for that of the democratic process and stifle the debate that ought to occur. They also mess up the analysis by putting the burden on opponents of SSM to explain how civil unions are just like marriages. THAT IS THE WRONG QUESTION AND A MUDDLE-HEADED DSTATEMENT OF THE ISSUE.

  45. Phouchg on October 15, 2008 at 7:49 pm

    3 down, 47 to go

  46. Ray on October 15, 2008 at 7:50 pm

    Great comments. Thanks.

    Mike and Blake said what I would have said.

  47. Russell Arben Fox on October 15, 2008 at 7:58 pm

    Nate O.,

    The odd thing about the push for SSM is that it is a battle over the legitimating force of marriage when that legitimating force is much weaker than it was in the past. Obviously, marriage still does a lot of work in our society, but not nearly as much as it used to do.

    This statement seems to align itself with Jonathan Rauch’s argument that SSM may, by taking the expressive power of the state in regards to marriage seriously, be seen as a contribution to a greater traditional respect for marriage. Any thoughts on that?

    I am actually sympathetic to Jeremy Waldron’s claim that we cannot resolved contentious political debates by reference to fundamental rights because the scope of fundamental rights is precisely what is politically contentious.

    Waldron’s argument that an expansive reading of judicial review–and indeed of the Supreme Court’s powers in general–is indefensibly antidemocratic is an important and persuasive one.

    I am still glad that Marshall found clever ways of making Jefferson’s life hellish and that the Federalists continued to influence American politics from beyond the grave via the federal courts.

    Like all right-thinking people, I also believe that major conceptual elements of our government ought to be defended–whatever their consequences for democracy and popular sovereignty–because they allow me to beat up on historical figures whom I consider to be creepy.

  48. Leonard on October 15, 2008 at 8:09 pm

    Along the immigration line, just a selfish point (for colleagues, not myself) to add. Without federal recognition, the same-sex spouse (legally in their home country – say Canada) of a diplomat is not granted any form of recognition or diplomatic immunity in the US. While I generally trust the US government, if you have any understanding of why diplomats and their families have immunity, this is very unfortunate.

  49. ECS on October 15, 2008 at 8:58 pm

    Nate O. said: I was asking whether you “care” in the sense that you regard the fact that a majority of justices reached a conclusion as a reason for believing that the conclusion is actually grounded in some supra-democratic thingy-ma-jig called the Constitution that makes the decision “right.”‘

    ECS says: Well, insofar as I believe no such thingy-ma-jig as the Constitution exists, only the votes of five judges.

    Nate O said: I am actually sympathetic to Jeremy Waldron’s claim that we cannot resolved contentious political debates by reference to fundamental rights because the scope of fundamental rights is precisely what is politically contentious.

    ECS says: Not only that, or precisely because of that, there’s no coherent jurisprudence on determining the contours of fundamental rights. But surely, Professor Oman, if the right to marry extends to murderers incarcerated for their heinous crimes and to deadbeat parents who divorce and remarry every couple of years and who refuse to care for the children they already have, then the right to marry extends to two consenting adults who happen to share the same gender.

    ECS jokes: As for Marbury, John Marshall should have delivered those commissions himself! Talk about conflicts of interest. . .

  50. Kaimi Wenger on October 15, 2008 at 9:02 pm

    Off to class, just time for a quick note,

    I agree with ECS. (and as a general matter, Nate is wrong on everything).

    :)

  51. Adam Greenwood on October 15, 2008 at 9:28 pm

    This statement seems to align itself with Jonathan Rauch’s argument that SSM may, by taking the expressive power of the state in regards to marriage seriously, be seen as a contribution to a greater traditional respect for marriage. Any thoughts on that?

    By the same token, opposition to SSM serves the same purpose. Of course, one can always dismiss it as ignorant prejudice. But I think the SSM controversies have educated many people.

  52. Adam Greenwood on October 15, 2008 at 9:29 pm

    Like all right-thinking people, I also believe that major conceptual elements of our government ought to be defended–whatever their consequences for democracy and popular sovereignty–because they allow me to beat up on historical figures whom I consider to be creepy.

    Ditto.

  53. John on October 15, 2008 at 11:50 pm

    I am having a hard time untderstanding what the big deal is. The LDS church already differentiates between civil and eternal marriages. As long as all churches get to determine for themselves what is sin is what difference does it make what the state allows lawyers to fight over. If they want to stand in front of their friends and family and express their feelings how does that change what I have?

  54. Adam on October 15, 2008 at 11:53 pm

    Not trying to draw out any extremes here, but what happens after SSM is legalized all over the US? What will be next on the agenda? Will we have reached the pinnacle of equality? I’m guessing not, so what would be pushed next? (in all seriousness)

  55. mlu on October 16, 2008 at 12:41 am

    I am actually sympathetic to Jeremy Waldron’s claim that we cannot resolved contentious political debates by reference to fundamental rights because the scope of fundamental rights is precisely what is politically contentious. Much as it makes American lawyers glum, it may be turtles all the way down…

    I decided something similar some years ago. Arguments don’t settle fundamental differences. The issue is only “resolved” by someone winning, and the winning, if it occurs, is largely in a different realm than reasoned argument.

    This has led me increasingly to disengage from many arguments and simply assert my position–bear my testimony, as it were. It has little effect on someone who’s contending but it’s hard to know who might be listening.

    Of course, the arguments can be useful and important to those attracted to them, and in an indirect way winning arguments sometimes filter through society, and in the long run they possibly end up mattering. In the short run, I’d say the political landscape looks promising for advocates of gay marriage.

    What will be pushed next, hard, will be to normalize gay marriage among young people, with attacks on representing hetereosexual marriage as at all normative. The idea of morality needs to be debunked, beginning with sexual morality but not ending there.

  56. Mark D. on October 16, 2008 at 12:47 am

    John (#53),

    I would say the reason is because both church and state have a compelling interest in both the existence and the welfare of the next generation. The reason for differential treatment is that the role of traditional marriage in the care and upbringing of children is the cornerstone of civilization and there is considerable suspicion that diluting the cultural conception of marriage will severely weaken the institution, ultimately resulting the sort of demographic implosion that many countries are now experiencing. Zero population is the answer my friend. Without it, the rest of us will die!

  57. Mark N. on October 16, 2008 at 1:47 am

    “65 pages of self-righteous pomp”

    One man’s pomp is another man’s… circumstance?

  58. Steven B on October 16, 2008 at 3:25 am

    (#54) Not trying to draw out any extremes here, but what happens after SSM is legalized all over the US? What will be next on the agenda? Will we have reached the pinnacle of equality? I’m guessing not, so what would be pushed next?

    Extending marriage to gays and lesbians nation wide would help to eliminate discrimination and improve equality in general for LGBT people. Most of the barriers in society that gays and lesbians now encounter will break down more quickly once marriage equality is extended on the Federal level.

    Earlier this year on one of the popular LGBT blogs someone tried to assemble a comprehensive “gay agenda” and included such things as teaching LGBT history in public schools. Wishful thinking perhaps, but it does indicate just how far the idea of “equality” could be taken.

    Here’s the link.

  59. Nate Oman on October 16, 2008 at 8:10 am

    “But surely, Professor Oman, if the right to marry extends to murderers incarcerated for their heinous crimes and to deadbeat parents who divorce and remarry every couple of years and who refuse to care for the children they already have, then the right to marry extends to two consenting adults who happen to share the same gender.”

    Beware of arguments on controversial subjects beginning with the phrase “but surely”….

  60. Nate Oman on October 16, 2008 at 8:21 am

    “This statement seems to align itself with Jonathan Rauch’s argument that SSM may, by taking the expressive power of the state in regards to marriage seriously, be seen as a contribution to a greater traditional respect for marriage. Any thoughts on that?”

    I don’t know, but there isn’t much empirical evidence to support the claim from European countries that have adopted gay marriage, but then the waters are very muddy because it is hard to figure out what would count as evidence in support of the claim. For what it is worth, I think that Rauch’s argument for SSM to the extent that it relies on functional arguments about marriage rather than appeals to equality and fundamental rights is one of the more persuasive ones that I have read. I am not particularlly persuaded by the arguments that SSM will somehow revitalize the expressive power of the state’s endorsement of marriage. It seems to me that power is largely parasitic on the social meanings created by churches and civil society. Historically that has certainly been the case. The real question, however, is what the expressive power of the state does in the marginal case, i.e. the person who is largely indifferent to marriage any way. I just don’t know what effect SSM is likely to have on this person. Does he say, “Gee, marriage must be important if gay couples want it” or does he say “Gee, marriage must be pretty irrelevent if it can be redefined at will by a 4 judge majority of the Connecticut Supreme Court”?

    “Like all right-thinking people, I also believe that major conceptual elements of our government ought to be defended–whatever their consequences for democracy and popular sovereignty–because they allow me to beat up on historical figures whom I consider to be creepy.”

    Glad to hear it. I do have some slightly more principled reasons in support of my largely unprincipled endorsement of the Marshall Court, namely my own belief that Jeffersonian agrarianism was not without its problems and my relief that the more commercial and Hamilitonian ideas found an institutional home during the period of that they were in the political wilderness.

  61. MikeInWeHo on October 16, 2008 at 12:15 pm

    re: 58

    Where did you determine that your link is to “one of the popular LGBBT blogs” ??
    Let me guess, in a conservative blog? I’ve never heard of it. AndrewSullivan.com is a much better portal into the gay blogosphere if anyone is interested.

    When I jumped over to that link I was expecting to find some appalling material, but have to say I kinda liked most of what she said (whoever she is). She ends well.

    But just to be clear: That blog does not establish a “comprehensive gay agenda.”

    I get to do that.

  62. Steven B on October 16, 2008 at 2:00 pm

    Pam’s House Blend won the best LGBT blog award in 2005, 2006 and was a finalist in 2007. Still, you are right to caution that a single blog post nor a single blog does not represent the thinking of all gay people any more than Times and Seasons defines Mormonism. But I thought that a popular gay blog would at least be better representative of gay people than a conservative source. After all, we wouldn’t turn to Utah Lighthouse Ministry to find out what Mormons “really” believe.

  63. MikeInWeHo on October 16, 2008 at 2:08 pm

    Confession: I know almost nothing about gay blogs. You busted me!
    Maybe Pam’s House Blend is the best one. Again, I rather liked her “gay agenda” and would love my LDS friends to ponder what she has to say and consider whether this so-called culture war is really necessary.

  64. Gerald Smith on October 16, 2008 at 2:20 pm

    The thing I see is that when you make everything the same, nothing is special or sacred.

    Historically, there has been a reason for society to recognize marriage between man and woman: to ensure the continuation of society. It has been important enough for our society to maintain this view that variants have been rejected by Congress and the Supreme Court in receiving such benefit: such as polygamy or living together.

    What historical benefit is there to society to provide this legitimacy to gay couples, beyond ensuring they have certain benefits? Will having legitimate gay marriages help ensure the continuation of society? Will it ensure children being born? Just where is the benefit to society?

    I see this as an attempt by a group to seek legitimacy without providing any tangible benefit to society. Why must we be forced to allow gay marriages, when there is no value added benefit to society as a whole? How will it benefit MY family?

    I see society legitimizing (socially, if not legally) many lifestyles that were once considered aberrant. Living together is not just winked at today, but considered the norm. Should that suddenly be something I should accept and show to my kids as being a benefit to society? If so, HOW is it benefitting society? Is it the statistic that unwed mothers tend to end up in poverty all their lives? Is it the statistic of how many Dads skip out on providing for their kids? How about the spread of AIDS, STDs, and other social diseases that abound in a promiscuous society? Just where is the benefit that I can share with my family?

    So should we look at any and all attempts to change marriage to include other groups besides a man and woman. Yes, giving gays the right to legalized marriage benefits them. But how does it really benefit society? If there is no actual benefit that can be safely accepted by all, then what value is there in devaluing the standard, which has shown to be a major benefit for centuries?

  65. mlu on October 16, 2008 at 5:50 pm

    #64 I agree. Expanding the definition of marriage weakens the traditional culture of marriage, which has always revolved around having and raising children.

    Marriage does ensure the continuation of society, and it does it by increasing the likelihood that children will grow up in families with both mothers and fathers present. This tends to be be best for all involved. It’s the best general structure that both strengthens society and promotes individual happiness.

    There’s ample research to support that view. Informed people no longer argue that divorce isn’t harmful to children or that single mothers can do as good a job raising children as devoted couples can.

    I expect research to be forthcoming that links the widespread decline of boys’s success in school at all levels to be linked to a decline of the culture of marriage, contributing to a loss of a wholesome motivating answer to their question, what are men for?

WELCOME

Times and Seasons is a place to gather and discuss ideas of interest to faithful Latter-day Saints.