Jay Reding.com

New Jersey Supreme Court Upholds Gay Marriage

Glenn Reynolds has a roundup of links on the decision by the New Jersey Supreme Court that denying equal rights to gay and married couples is a violation of the New Jersey Constitution. Reynolds notes that civil unions might be sufficient under the decision, but even that is questionable.

I don’t have the time to read the decision quite yet (plenty of other decisions to read at the moment), but from what cursory reading I’ve done, I have a feeling that this may energize Republican voters who are opposed to gay marriage. Putting such sweeping social changes into the hands of the judiciary is likely to inflame those who want this to be a matter for the legislative domain. Indeed, Senate candidate Tom Kean has come out in favor of an amendment to define marriage as being between one man and one woman. Given the massive margins by which similar measures have passed in other states, that’s likely to be the outcome in New Jersey as well.

I’ve always been somewhat skeptical of arguments that gay marriage will somehow destroy the sanctity of marriage as an institution. I’m personally for some kind of civil union arrangement for gay couples, but I also agree that the cultural baggage that goes along with the concept of marriage does not allow that term to be stretched that far beyond it’s centuries-old common law meaning. Marriage has never been anything else but the union between one man and one woman, and to stretch that term to fit all sorts of social arrangements is not going to fly in this country. However, if gay couples were allowed to engage in civil unions, would that really destroy the sanctity of marriage? After all, there are gay people, and gay people do have sex — isn’t it a better argument to say that using monogamy as a healthy standard for both relationships will strengthen it for all? (Andrew Sullivan’s made that argument before, and I think it’s a rather good one.) Does the mere existence of married gay couples somehow present an existential threat to marriage as an institution? I’ve yet to see any truly convincing and rigorous data that says that it does.

However, that doesn’t mean that all advocates of traditional marriage are mindless bigots. There is quite a lot of philosophical and cultural ground to argue that extending marriage that far diminishes the currency of marriage until it becomes virtually meaningless. That’s not an argument that can be easily brushed aside. The state has an interest in healthy families, as healthy families are the primary way that democratic values are inculcated into the body politic. Marriage and healthy families are undoubtedly strongly correlated. The state has a definite interest in making sure that marriage as an institution stays healthy and strong. The New Jersey Supreme Court seems to broadly dismiss those arguments, and I’m not sure that line of reasoning is necessarily all that solid. If government has no interest in marriage, then it should be purely a matter of contract — and that’s where I could foresee this all ending up.

Until then, one thing is clear: a majority of Americans do not support gay marriage. If there is one thing recent history has taught us, it’s that major societal changes have to come from the bottom up rather than the top down. A judicial imposition of such a sweeping culture change will inevitably lead to a backlash, and ultimately this sort of judicial activism may prove to further politicize an issue which belongs in the domain of culture and persuasion rather than judicial edict and legislative pronouncement.

UPDATE: Some commenters have pointed out that the decision doesn’t actually uphold gay marriage — which may be technically true, but I don’t think that technicality ultimately matters. The New Jersey Supreme Court held that:

enying committed same-sex couples the financial and social benefits and privileges given to their married heterosexual counterparts bears no substantial relationship to a legitimate governmental purpose. The Court holds that under the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution, committed same-sex couples must be afforded on equal terms the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes. The name to be given to the statutory scheme that provides full rights and benefits to same-sex couples, whether marriage or some other term, is a matter left to the democratic process.

So gay couples are afforded the same rights and protections as heterosexual couples as a matter of the New Jersey Constitution — and “on equal terms.” The New Jersey Supreme Court doesn’t preclude a later suit demanding that gays be given full marriage rights, including the term itself. In fact, 3 justices did indeed specially concur to state they felt that was the case. As loathe as I normally am to accept slippery slope arguments, I think this decision inevitably leads in the direction of full gay marriage.

I’m guessing that based on New Jersey law, to afford the same rights “on equal terms” to homosexual couples as heterosexual couples, it would be absolutely necessary to uphold gay marriage as a full and complete package. Giving gay couples only “civil unions” while allowing straight couples to be legally “married’ seems utterly inconsistent with this ruling. If I were on the side of full gay marriage, that’s the argument that I’d be making in future litigation — which seems inevitable at this point.

26 responses to “New Jersey Supreme Court Upholds Gay Marriage”

  1. Seth says:

    Ok well when you get a second you should actually read the opinion instead of repeating what your nutjob friends on the right are saying. The NJ Supreme Court explicitly states that marriage is not a right homosexuals have–plainly put, it does the opposite of upholding same sex marriage. The Court says that needs to be done in the legislature. The NJ Court merely says that homosexuals should have the right to civil unions. So pretty much the Court says what you think should happen. Oh, and not only do a majority of Americans think homosexuals should have access to civil unions, it is growing increasingly popular in public opinion polls.

  2. Erica says:

    I’m undecided on whether churches should be forced to perform marriage ceremonies for gay people. Obviously I think that they should have civil unions that grant the same rights/privaleges as a marriage. But I’m not really certain churches should have government power to marry anyone at all, since they aren’t regulated and don’t pay taxes.

  3. Mark says:

    “If there is one thing recent history has taught us, it’s that major societal changes have to come from the bottom up rather than the top down. A judicial imposition of such a sweeping culture change will inevitably lead to a backlash, and ultimately this sort of judicial activism may prove to further politicize an issue which belongs in the domain of culture and persuasion rather than judicial edict and legislative pronouncement.”

    Yet when the California Legislature offered a bill to Governor Schwarzenegger last year that would legalize gay marriage, Schwarzenegger vetoed it on the grounds that “it’s an issue that should be settled by the courts.”

    Around and around we go in conservative ideological circles….

  4. Jay Reding says:

    Ok well when you get a second you should actually read the opinion instead of repeating what your nutjob friends on the right are saying.

    Glenn Reynolds hardly qualifies as a “nutjob” nor is he particularly “on the right” on this issue – except in the world where everyone who doesn’t agree with you is some kind of right-wing nutjob. Furthermore, he happens to be a professor of law and a noted legal scholar. I’ll trust word ahead of a blog troll any day.

    The NJ Supreme Court explicitly states that marriage is not a right homosexuals have–plainly put, it does the opposite of upholding same sex marriage.

    Except they do in fact say such a thing:

    Denying committed same-sex couples the financial and social benefits and privileges given to their married heterosexual counterparts bears no substantial relationship to a legitimate governmental purpose. The Court holds that under the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution, committed same-sex couples must be afforded on equal terms the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes. (Emphasis added)

    In other words, gay couples have the exact same rights as married couples do, and those rights are guaranteed under Article I, Paragraph 1 of the New Jersey Constitution.

    The Court says that needs to be done in the legislature.

    Not quite:

    The name to be given to the statutory scheme that provides full rights and benefits to same-sex couples, whether marriage or some other term, is a matter left to the democratic process.

    This seems to be dicta to me — it’s not actually a ruling of the court. In fact, there’s a very credible argument that by nature distinguishing homosexual and heterosexual unions would deny homosexuals the “equal terms” of law. If I were on the pro-gay marriage side, I’d sure as hell be making that argument. Even Eugene Volokh sees a slippery slope in this decision.

    The NJ Court merely says that homosexuals should have the right to civil unions. So pretty much the Court says what you think should happen.

    I’d strongly argue that it goes farther than that. How can one square the idea that gay couples have the exact same rights “on equal terms” yet can’t call themselves legally married? There’s a contradiction to this decision that essentially forces the court to either overturn itself or declare marriage open to both homosexual and heterosexual couples.

    Oh, and not only do a majority of Americans think homosexuals should have access to civil unions, it is growing increasingly popular in public opinion polls.

    Even if that is true, a judicial decision that mandates gay marriage — even if given a different name, is not going to be a popular one and abrogates what should properly be a legislative function (and even before that a cultural one) and enacts a sweeping social change by judicial decision. That isn’t the right way of going about things, and it’s going to hurt those who advocate for equal rights.

  5. Jay Reding says:

    Yet when the California Legislature offered a bill to Governor Schwarzenegger last year that would legalize gay marriage, Schwarzenegger vetoed it on the grounds that “it’s an issue that should be settled by the courts.”

    Around and around we go in conservative ideological circles….

    That is completely incorrect. The voters of California already banned gay marriage through Proposition 22, and Schwarzenegger felt (rightly) that such a bill would contradict the voter’s decision in that case. The only issue for the courts would have been to determine whether Proposition 22 was valid, which they had not done.

  6. Seth says:

    Wait–so then you’re in favor of civil unions only if they are quasi-civil unions that are not as good as the civil unions for heterosexuals?

    The Court absolutely refused to hold that there is a right of same-sex marriages and said that should be done by the legislature. It’s that simple. Your ‘technicalities’ come from a very muddled conception of what a marriage is in the legal sense of the term. I would suggest reading some Hendrik Hartog.

    But no matter how many technicalities or slipperly slopes or future litigations you can conjure up, your headline was patently wrong.

  7. Jay Reding says:

    Wait–so then you’re in favor of civil unions only if they are quasi-civil unions that are not as good as the civil unions for heterosexuals?

    I would favor an incrementalist approach that would give increasing amount of recognition to gay couples. I’d prefer that there not be either a judicial or a legislative solution, but rather a societal acceptance. For instance, rather than passing a law that mandates that hospitals afford equal visitation rights to gay partners, I’d rather see hospitals make that decision for themselves as they wish. (Which many do.)

    The Court absolutely refused to hold that there is a right of same-sex marriages and said that should be done by the legislature.

    Again, read their holding. They held that the legislature could decide the name, but that gay couples had to have rights “on equal terms” with heterosexual couples. Furthermore, the court left open the possibility of further suit that would ensure that gay couples had to be recognized as fully married.

    Read the language of the court — can anyone really argue that it is legally consistent to grant rights “on equal terms” yet not treat these two groups exactly equally? Three justices specially concurred and argued that indeed, the effect of this decision would be to grant full gay marriage. It’s hard to imagine a consistent argument that you can have the same legal rights “on equal terms” without fully and completely extending marriage rights to gay couples — including the use of the term.

    I would suggest reading some Hendrik Hartog.

    I have read Hartog (one of his articles is found here). Hartog’s problem is that he applies the typical left-wing approach of looking at marriage through the race/gender/class framework rather than trying to understand the real reasons why society has sanctioned marriage throughout the ages. It isn’t an institutionalization of oppression, it is the primary way in which democratic values are inculcated into society. The whole point of marriage is to support the development of healthy families. It is the family that provides the mortar that holds society together — and it has been that way for most of the development of Western civilization. Hartog utterly neglects that line of analysis, which is why he utterly misses the point.

    But no matter how many technicalities or slipperly slopes or future litigations you can conjure up, your headline was patently wrong.

    No, it’s a logical conclusions of the New Jersey Supreme Court’s ruling, and I stand by it. You can’t have a doctrine that basically gives “separate but equal” marriage rights and square it with a decision that demands marriage rights “on equal terms.” The court was merely trying to avoid the consequences of their own holding by arguing for an unsupportable semantic distinction.

  8. Seth says:

    So you’re saying that constitutional amendments–like the one in Virginia–that ban any sort of civil union or seeing loved ones at hospitals go too far?

    Marriage, in the legal sense, applies to the benefits of living together monetarily, but it also refers to a status among people as defined by a state. That’s why you get the traditional line “by the power vested in me by the state of _______” and why the line conservatives tried to used about certain states being forced to recognize a marriage in Massachsetts was a load of crap.

    Nice bashing of Hartog without providing any examples. You could have inserted the name of another scholar who isn’t perfectly in line with your views and said basically the same thing. His argument that marriage in the legal sense has largely been defined in terms of divorce is very powerful, although (to paraphrase Mark Kennedy) it might not be what you want to hear. And to take a look at custody decisions, marriage language and divorce law throughout most of American history, it is extremely difficult to argue that women were not made the property of their husbands. This is not to mention the fact that someone criticizing a scholar for not understanding “the real reasons why society has sanctioned marriage throughout the ages” and then claiming “it is the primary way in which democratic values are inculcated into society” is seemingly arguing that marriage went through a very radical change in America around the time of the Revolution and directly before–a notion more ignorant to historical fact than the right wing typically dares to dream up. But it’s hard to imagine an institution that until the middle of the nineteenth century being completely undemocratic while fostering democratic values.

    There are (at least) two parts to a marriage in the legal sense. One is the ability to be an heir, go to the hospital, etc., and the other is the legal standing of the relationship that is infused in religious terminology. This decision gives homosexuals the right to the first part of it but stops short of giving them the right to the second part of it. To beat a dead horse, the distinctions you are drawing ignore the second part and show a very muddled conception of state-sanctioned marriage.

  9. Erica says:

    I’d prefer that there not be either a judicial or a legislative solution, but rather a societal acceptance.

    Yeah, it’d be nice if we lived in that fantasy world, where we could just count on everybody to do the right thing. It would have been nice if “societal acceptance” had been sufficient to end slavery or bigotry, too.

    The problem is Republicans standing in the way of that acceptance, like in the South, where their legislation would prevent even private citizens from recognizing gay unions.

    The whole point of marriage is to support the development of healthy families.

    Families with gay parents are healthy; all the sociological research supports that. Gay marriage doesn’t make for families that are any less healthy. The “healthy family” argument doesn’t work for your side, because healthy families are exactly why gay couples need the rights of marriage.

  10. Mark says:

    The timing of this ruling couldn’t be worse for Democrats as it could reignite the fire under their base in places like Tennessee, NC-11, and next door in PA-10. You can bet there will be alot of evangelical preachers reminding their minions of the ruling on Sunday morning.

  11. Jay Reding says:

    So you’re saying that constitutional amendments–like the one in Virginia–that ban any sort of civil union or seeing loved ones at hospitals go too far?

    I wouldn’t vote for such a thing as I think that such a thing imposes the state in areas that they don’t belong. An individual hospital should have the right to ban gay couples from full visitation rights — in that case they lose the benefit of serving gay patients who object. I believe that a constitutional amendment specifically imposing a ban goes to far, yes.

    Marriage, in the legal sense, applies to the benefits of living together monetarily, but it also refers to a status among people as defined by a state. That’s why you get the traditional line “by the power vested in me by the state of _______” and why the line conservatives tried to used about certain states being forced to recognize a marriage in Massachsetts was a load of crap.

    No, it isn’t. In general, states must give “full faith and credit” to decisions in other states under the US Constitution. The Defense of Marriage Act (signed by President Clinton) says that this doesn’t have to extend to marriage but there have been arguments that DOMA can’t constitutionally do that. I personally think that DOMA probably is unconstitutional, although the Supreme Court hasn’t yet heard a case relating to DOMA at this time.

    Nice bashing of Hartog without providing any examples.

    Other than a reference to his article…

    His argument that marriage in the legal sense has largely been defined in terms of divorce is very powerful, although (to paraphrase Mark Kennedy) it might not be what you want to hear.

    Can you cite something were Hartog says that? If that’s his argument, I’d like to be able to know more the context.

    And to take a look at custody decisions, marriage language and divorce law throughout most of American history, it is extremely difficult to argue that women were not made the property of their husbands. This is not to mention the fact that someone criticizing a scholar for not understanding “the real reasons why society has sanctioned marriage throughout the ages” and then claiming “it is the primary way in which democratic values are inculcated into society” is seemingly arguing that marriage went through a very radical change in America around the time of the Revolution and directly before–a notion more ignorant to historical fact than the right wing typically dares to dream up. But it’s hard to imagine an institution that until the middle of the nineteenth century being completely undemocratic while fostering democratic values.

    Which argues that because marriage is somehow undemocratic, that it could not produce democratic values. Except that really isn’t true. The fact that marriage and divorce laws have become more liberal over the ages (perhaps too liberal in some cases) doesn’t negate the essential purpose of marriage in society. The traditional purpose of marriage is to have children, and raise those children to be good citizens.

    If undemocratic institutions can’t produce democratic values, then why can schools (which are profoundly undemocratic) teach democratic values?

    While women were treated poorly historically (both married and unmarried, for that matter), that doesn’t mean that the institution of marriage is the reason for that. Marriage isn’t about codifying the oppression of women, that oppression existed in plenty of other forms. Hartog argues that the fundamental legal understanding of marriage was one of “power and subordination” which is true to a point, but that was the legal understanding for the affairs of women in all of society. Marriage as an institution does change with the times, but that doesn’t mean that a fundamental rethinking of the way marriage works is necessarily good policy.

    There are (at least) two parts to a marriage in the legal sense. One is the ability to be an heir, go to the hospital, etc., and the other is the legal standing of the relationship that is infused in religious terminology.

    I’ll accept that distinction.

    This decision gives homosexuals the right to the first part of it but stops short of giving them the right to the second part of it.

    It does stop short, but it lays a groundwork in which that second part becomes all but inevitable — the decision does leave the door open for future litigation which would fully and completely legalize full gay marriage rights — in fact, that seems inevitable unless the Court rejects its own logic in some way.

    Again, the operative language is “on equal terms.” If we accept your two points, by denying gay couples the right to that second aspect of marriage, is that truly putting them “on equal terms?” I don’t think that you can draw that fine of a distinction without negating some of the court’s own logic. Nor do I think that gay rights activists are going to accept that formulation either.

    Erica:

    Yeah, it’d be nice if we lived in that fantasy world, where we could just count on everybody to do the right thing. It would have been nice if “societal acceptance” had been sufficient to end slavery or bigotry, too.

    Actually, I’d argue that it did. By the time of the civil rights movement in the 1950s and 1960s, attitudes of abject bigotry were already considered morally unacceptable by a significant fraction of the population. Even Martin Luther King admitted that the civil rights movement could not have survived without the support of a significant number of Northern whites.

    As to slavery, the abolitionist movement had existed since the beginning of the Republic, and such works as “Uncle Tom’s Cabin” made many see the Civil War as both a moral crusade as well as an effort to keep the Republic united.

    The problem is Republicans standing in the way of that acceptance, like in the South, where their legislation would prevent even private citizens from recognizing gay unions.

    Except it’s not just Republicans who support gay marriage bans. Measures that ban gay marriage have passed in several states by huge margins.

    Families with gay parents are healthy; all the sociological research supports that. Gay marriage doesn’t make for families that are any less healthy. The “healthy family” argument doesn’t work for your side, because healthy families are exactly why gay couples need the rights of marriage.

    As I said in the post, I’m sympathetic to that article, but the sociological data isn’t conclusive. Denmark’s approval of gay marriage has had an influence on overall divorce rates that’s strongly correlated enough to be suggestive. Before starting making sweeping policy decisions on that, there needs to be “islands of experimentation” that give more hard evidence to suggest that’s true.

    One of the more troubling aspects of this decision is that it really does create a slippery slope — you can’t have an incremental approach to gay marriage under this decision, which makes those kind of slow and deliberative changes impossible. If it comes down to a bright-line choice of gay marriage or no, the voters are going to choose “no” right now. It’s in the best interests of gay rights activists to not force an issue that they’re sure to lose.

  12. jack says:

    “Marriage has never been anything else but the union between one man and one woman, and to stretch that term to fit all sorts of social arrangements is not going to fly in this country”

    I was struck by this. Marriage has not always been this ‘one man/one woman’ thing that some claim. Even today, in our own country, it is only this because we choose to violate our First Amendment. And then, while it has stopped some, it has not stopped all and plural marriages still exist in the US.

    It seems so easy to discount this simple fact–and the fact that plural marriage is still practiced in many parts of the globe.

  13. Erica says:

    Marriage has never been anything else but the union between one man and one woman

    I’m astounded by how many people say this like it’s true. Every civilization has instances of same-sex marriage. The Catholic church even has rites for same-sex couples, based on the homosexual marriage of David and Johnathan in the Bible. (“The soul of Jonathan was knit with the soul of David, and Jonathan loved him as his own soul … And Jonathan stripped himself of the robe that was upon him, and gave it to David, and his garments … and his girdle.”) Same-sex marriage has been a tradition across Africa for literally thousands of years.

    Beyond Jack’s point about plural marriage being the norm (as well as the model put forth by the Bible), same-sex marriages aren’t new. If anything they’re as traditional as heterosexual marriage. It’s simply a tradition conveniently ignored by the homophobes of the so-called “moral majority.”

  14. Jay Reding says:

    I’m astounded by how many people say this like it’s true. Every civilization has instances of same-sex marriage. The Catholic church even has rites for same-sex couples, based on the homosexual marriage of David and Johnathan in the Bible. (”The soul of Jonathan was knit with the soul of David, and Jonathan loved him as his own soul … And Jonathan stripped himself of the robe that was upon him, and gave it to David, and his garments … and his girdle.”)

    I’ve heard that argument before (and there’s a really fascinating article in First Things about it). The problem with that reasoning is that those ceremonies don’t have anything to do with sexuality at all. The Greek word used in those ceremonies is based of the root adelpho, which means “brother” (or “sister”) and doesn’t have an erotic component at all. That ceremony isn’t at all about “gay marriage”, but is a very archaic rite allowing the Church to recognize a close friendship — a platonic one. I don’t believe it’s still practiced in the Roman Catholic Church anymore, and is pretty much kept by a few very traditional Orthodox churches.

    As for David and Jonathan, concluding that is was a “marriage” isn’t something that can really be done. It is possible that context was there, but the original Hebrew is ambiguous. Furthermore, in the same passage, David marries Michal, which certainly doesn’t make it seem like the two were “married” in any real sense.

    Same-sex marriage has been a tradition across Africa for literally thousands of years.

    It never has been in the Western context, and that’s where our society and law derives itself.

    Beyond Jack’s point about plural marriage being the norm (as well as the model put forth by the Bible), same-sex marriages aren’t new. If anything they’re as traditional as heterosexual marriage. It’s simply a tradition conveniently ignored by the homophobes of the so-called “moral majority.”

    Gay marriage has never been a part of the Western tradition, at least not as it relates to our common law.

  15. Erica says:

    The problem with that reasoning is that those ceremonies don’t have anything to do with sexuality at all.

    Neither do the literal words of heterosexual marriage ceremonies, either. The sexual connotations of traditional weddings survive not in the text of the ceremony but in the cultural trappings. It’s easy to imagine the same thing being the case for these ceremonies as well. Anyway, what other purpose would they serve? One hardly needs a ceremony to just be friends with someone. It’s clear that these ceremonies represent a deep, lasting committment between two persons of the same sex, just like marriage. The idea that these ceremonies represent “friendship” as opposed to same-sex union is just nonsense.

    As for David and Jonathan, concluding that is was a “marriage” isn’t something that can really be done. It is possible that context was there, but the original Hebrew is ambiguous.

    Maybe you haven’t read the Bible ever. Tell me if you find this sequence of events “ambiguous”:

    1) David meets Johnathan. They have an immediate, deep connection.
    2) They arrange to meet.
    3) Johnathan takes all his clothes off in front of David.
    4) David tells Johnathan he prefers him to women.
    5) They’re discovered by Johnathan’s father, who accuses David of “confusing” the desires of his son.
    6) They have a ceremony akin to a marriage. From then on, the example of David and Johnathan becomes the example given during Catholic same-sex wedding rites.

    It’s a gay marriage, Jay. Right there in the Bible.

    Furthermore, in the same passage, David marries Michal, which certainly doesn’t make it seem like the two were “married” in any real sense.

    It’s called “plural marriage.” You might have noticed, if you had ever read a Bible, that there’s more plural marriages in the Bible than monogamous ones.

    It never has been in the Western context, and that’s where our society and law derives itself.

    Leaving aside the example of David and Johnathan, which you’re clearly deluding yourself about, when did this suddenly become just the “Western” context? And since when does America derive cultural values only from white Europeans? What, it’s fine when Africans contribute jazz and barbeque, but they’d better keep their ideas about society and culture to themselves?

  16. Seth says:

    False positives again?

  17. Seth says:

    1.) If a hospital gets to decide who can receive the full benefits of its care we are in a lot of trouble–particularly in rural areas where one hospital is the only show in the neighborhood. And you’re forgetting the things that exist only in the legal arena, like being able to pass on property. I would say that even homosexuals can pass on property to whomever they chose. You apparently disagree.

    2.) Courts have been rejecting full faith and credit left and right. Here’s one. That’s why the Supreme Court has said “…we think the conclusion is unavoidable that the full faith and credit clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state, even though that statute is of controlling force in the courts of the state of its enactment with respect to the same persons and events” since at least Pacific Employers Ins. Co. v. Industrial Accident Comm’n. In South Dakota you obtain a driver’s permit at age 14. In Minnesota you can’t. Following your argument, any resident of South Dakota would be able to drive under South Dakota’s laws in Minnesota. Keep pumping that head of yours full of right-wing talking points, though.

    3.) A reference to an article is not sufficient for bashing. You have to actually talk about what the writer says in the article. For example, if I were to say:

    Here’s an article by Milton Friedman. Friedman falls into the predictable right-wing trap of arguing that markets can solve all problems equally because he treats the market as some all-powerful force that transcends culture and people, rather than seeing the fact that markets are created by people for their gain and manipulated by those who have the power to do so, often creating extreme inefficiencies and social injustices,” I would expect you to call me out on it, since I haven’t really made an argument.

    4.) Hartog: a.) he shows definitively that married women actually were dissolved as a person through the legal marriage arrangement. The two people became one legally–the husband. Were other women repressed? Yes. Does that mean that marriage was not an oppressive institution? Nope.
    b.) So, as I said before, you should read some Hartog. I’d start with Man and Wife in America.
    c.) No one is arguing for a fundamental rethinking in how marriage works.
    d.) First, there are many parts of schooling that are very democratic. Second, if marriage is a way in which democratic institutions are passed on, and there has not been democracy for most of human history, then you must be arguing that underwent a radical transformation at the time of democratic foundings, or that marriage only protects the status quo. Which is it?
    5.) As I’ve said before (do you ever get tired of me repeating the same things to you?): The state has control over the first part of marriage, which is the contractual, legal, taxation stuff. The state has less control over the religious aspect of it. The New Jersey court addressed the first aspect and is letting the legislature and religious bodies deal with the second.

    (Editorial Note: Several comments have been conflated into one. The content has not been changed or edited.))

  18. Bostonian says:

    I am fascinated by the fact that lefties think that law can found by abstract reasoning (I’ve noticed the same thing among my lefty friends).

    That is not how democracy works. You get one vote, same as anybody else.

    You happen to have a minority opinion. Get over it.

    ***
    Personally, I like having a say in how the law gets made. So that means I will never, never, but never vote again for anyone who is likely to appoint a judge who enacts laws in which I had no possible input.

  19. Erica says:

    I am fascinated by the fact that lefties think that law can found by abstract reasoning…That is not how democracy works. You get one vote, same as anybody else.

    It’s funny you should say that, because the Supreme court justices most likely to overturn legislation passed by Congress are appointed by conservative Republicans.

    Seems like it’s the Right who’s under the impression that their own judgement is superior to majority rule.

  20. Bostonian says:

    Seth,
    Even more than majority rule, the Constutition protects the individual.

    If Congress passes laws that violate the Constitution, particularly the Bill of Rights, then the Supreme Court is obligated to toss those laws out.

    As understood by the founders of our country, a right was a domain or area in which government was not permitted to intrude (“Congress shall make no law…”). There is no inherent conflict of rights between people in this view.

    But the Left has a radically different view of what the word “right” means. Apparently, a right is something that people must be given, a guaranteed result or the like. This theory puts people into inevitable legal conflict with each other, as these rights will end up conflicting with each other (witness the Left’s deprecation of property rights as being a lesser right, for one). And by insisting that the outcome, rather than the process, is what matters, the Left inevitably treats people differently under the law–and has tried to institutionalize that practice.

    So I don’t expect we’ll agree on anything anytime soon.

  21. Jay Reding says:

    1.) In reality, how many gay couples live in such isolated rural areas? Would it be enough to justify a national law? As for passing on property, I believe that anyone should be able to pass on their property to anyone else, and do so without any estate tax applying to it…

    2.) It all depends on whether the courts find that there is a convincing public policy rationale for not recognizing the recognition of a marriage. By the NJ Supreme Court’s argument, you can’t say that public policy prevents recognizing gay marriages as they say that as a matter of equal protection, any state with a constitution like theirs has no compelling state interest in banning gay marriage.

    Now, if you say “yes, but Ohio bans gay marriage by constitutional amendment” then you have a much stronger case. But wouldn’t the effect of that be to encourage other states to pass such sweeping bans?

    3.) I’d naturally challenge you further on that, but you would be making a critical argument based on the text.

    4.) a.) Let’s assume for the sake of argument all that is true. I haven’t read Hartog’s book and probably won’t be able to for a while. (Although it does sound worthwhile.) The problem there is that it still doesn’t provide a justification for full marriage rights for homosexuals. If marriage was an institution of oppression, it certainly is not so now. Furthermore, marriage is and always has been a union between one man and one woman in the common law.
    c.) Because of that, extending marriage beyond that definition would most certainly be a redefinition of what marriage is.
    d.) Actually, I would argue that it is the way the status quo is maintained. Since we live in a state that’s always been a democracy, it’s always been about passing on democratic values. To quote from a piece I read recently:

    The married couple, the covenant family, played a vital role in society, alongside the church and the state… It nurtured and educated children, and inculcated with them virtue and love of God, respect and submission to authority and law… As a late sixteenth century Puritan writer put it: “A household is, as it were, a little commonwealth, by the good government whereof, God’s glorie may be advanced, the commonwealth with standeth of severall families, benefitted, and all that live that familie may receive much comfort and commodities.”

    John Witte, Blest Be the Ties that Bind: Covenant and Community in Puritan Thought, Emory Law Journal, Vol. 38, 1987, 579, 595.

    That conception of marriage certainly influenced the common law in the US, and still does.

    5.) That’s what the NJ Supreme Court tries to do. The problem is that once you’ve stated that gay “unions” and conventional marriages must be “on equal terms”, you can’t start saying that it’s appropriate to use one term for one and another for the other — nor can you limit the rights which gay couples can have compared to straight ones. You can’t have marriage be “separate but equal” between homosexuals and heterosexuals.

    They’ve tripped themselves up in their own logic, and ultimately it’s going to be harder to make the sort of incremental changes that would likely give gay couples an easier time in society.

  22. zzx375 says:

    What new information apparently available only within the last year or so, requires that society in general accept gay marriage or that courts grant such a measure? This new information apparently wasn’t around 5 or 10 years ago.

    Erica, what translation of the Bible are you using? I’ve checked several and they don’t read as you describe.

  23. Seth says:

    Bostonian,
    At no point in your rambling, incoherent response was there anything that could even be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.

    Jay,
    1.) The fact that there are fewer homosexual couples in rural areas does not make it acceptable to deny them access to loved ones in hospitals.
    2.) There is a court in the United States that says full faith and credit does not apply to gay marriage. There are no courts that say otherwise. And of course, the NJ Supreme Court explicitly says marriage is not a right given to homosexuals under equal protection. So you’re really not talking about this case here.
    3.) “This is a stupid argumet” is not an argument based on the text.
    4.) a.) At no point have I ever used Hartog as a justification for gay marriage, so you’re arguing with a phantom somewhere out there. Nice work.
    c.) You’re shifting your argument. First you say gay marriage is changing the way marriage works. I pointed out that in no way does gay marriage change the way in which marriage works. Now you’re making the argument that gay marriage extends the definition. Pick your argument and go with it for once.
    d.) Again, 23 comments into this post, you’re making a completely different argument. First marriage was the defender of democracy. Now it’s the maintenance of the status quo. Awesome.
    5.) Under the law, civil arrangements are distinct from marriage. The NJ Court realizes that. Apparently it’s not getting through your head. Maybe you should write about something you understand a little more.

  24. Erica says:

    Did Jay originally say that marriage is the defender of democracy? Specifically TRADITIONAL marriage? As in, marriage where the woman goes from being the property of her father to the property of her husband? Because that’s traditional marriage. We haven’t had traditional marriage in this country for 30+ years – it ended when we began to recognize women as people who have rights. Traditional marriage is not a partnership between two people who love each other, it’s a master-slave relationship. (Which, by the way, means that if you wanted a romantic relationship with an equal, it was a gay relationship.) And it’s not really shocking that conservatives are so hung up on the idea of traditional marriage, because they really hate it when women have control over their own lives. When women have control over their own lives, it’s no longer a buyer’s market for men. The Mr. Collinses in the modern era just don’t get laid, and they can’t handle that. (And one of the best ways to keep women powerless and financially dependent – so they are forced to stay with the Mr. Collinses – is to keep them pregnant.) It’s not really about omg teh gheyz so much as it’s about keeping traditional power structures in place; the people who oppose gay marriage are the same ones who hold weirdo purity balls for their daughters and have Confederate flag bumper stickers.

    The government should be small, except for the Department of Panty-Sniffing.

  25. Chris says:

    I would favor an incrementalist approach that would give increasing amount of recognition to gay couples. I’d prefer that there not be either a judicial or a legislative solution, but rather a societal acceptance. For instance, rather than passing a law that mandates that hospitals afford equal visitation rights to gay partners, I’d rather see hospitals make that decision for themselves as they wish. (Which many do.)

    WHAT?!?! “You can be equal, but we’re gonna work up to it…”

    Jay, are you “God”? If so, then you can punish them in hell after they die. Stay out of it while they are on Earth and alive. If not, I say we knock down the “Church Sanctioned” weddings to nil. No more marriage… at least not that the state or federal entities recognize. Let’s go ahead and seperate the “Church” and the “State” here and now. Church ceremonies will not be recognized by anyone other than God and over-bearing mother-in-laws. Only the federal “civil unions” will be recognized for taxes, credit, and health care.

    Speaking of healthcare: If hospitals can decide on who to allow to visit, why not sweeping reform allowing hospitals to decide whether patients receive medical care by race, sexual preference, or religion… as decided by a caucus of closet-homosexual Republicans? If you’re gonna go there, you might as well do it with “gusto”.

    Are you one of those Rednecks that fears homosexuals because he was molested by Uncle Foley as a child? Come on out of the closet and stop beating yourself up… geez.

  26. zzx375 says:

    Hmmmm, guess no on can point out precisely what it is that makes this such a compelling issue today vs. five years ago. The gay community seems to be claiming a ‘right’, but on what basis?